SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934 (Amendment No. 8)
General Growth Properties, Inc.
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE PER SHARE
(Title of Class of Securities)
370023103
(CUSIP Number)
Joseph S. Freedman
Brookfield Asset Management, Inc.
Brookfield Place, Suite 300
181 Bay Street, P.O. Box 762
Toronto, Ontario M5J 2T3
Telephone: (416) 956-5182
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Gregory B. Astrachan, Esq.
Michael A. Schwartz, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019−6099
(212) 728−8000
April 12, 2013
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 370023103 | Page 2 of 37 Pages |
SCHEDULE 13D
1 |
NAMES OF REPORTING PERSONS
Brookfield Retail Holdings VII LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨ (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
WC |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
306,201,050* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
306,201,050* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
306,201,050* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
þ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.5%* |
14 |
TYPE OF REPORTING PERSON
OO |
* By virtue of certain voting rights, the Reporting Person may be deemed to share beneficial ownership of 306,201,050 shares of Common Stock, representing 30.5% of the shares of Common Stock. The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 3 of 37 Pages |
SCHEDULE 13D
1 |
NAMES OF REPORTING PERSONS
Brookfield Retail Holdings II LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
WC |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
306,201,050* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
306,201,050* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
306,201,050* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
þ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.5%* |
14 |
TYPE OF REPORTING PERSON
OO |
* By virtue of certain voting rights, the Reporting Person may be deemed to share beneficial ownership of 306,201,050 shares of Common Stock, representing 30.5% of the shares of Common Stock. The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 4 of 37 Pages |
SCHEDULE 13D
1 |
NAMES OF REPORTING PERSONS
Brookfield Retail Holdings III LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
WC |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
306,201,050* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
306,201,050* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
306,201,050* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
þ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.5%* |
14 |
TYPE OF REPORTING PERSON
OO |
* By virtue of certain voting rights, the Reporting Person may be deemed to share beneficial ownership of 306,201,050 shares of Common Stock, representing 30.5% of the shares of Common Stock. The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 5 of 37 Pages |
SCHEDULE 13D
1 |
NAMES OF REPORTING PERSONS
Brookfield Retail Holdings IV-A LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
WC |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
9,019,344* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
9,019,344* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
9,019,344* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
þ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.0%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 6 of 37 Pages |
SCHEDULE 13D
1 |
NAMES OF REPORTING PERSONS
Brookfield Retail Holdings IV-B LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
WC |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
18,009,195* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
18,009,195* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
18,009,195* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
þ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.9%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 7 of 37 Pages |
SCHEDULE 13D
1 |
NAMES OF REPORTING PERSONS
Brookfield Retail Holdings IV-C Sub LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
WC |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
6,033,461* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
6,033,461* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
6,033,461* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
þ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 8 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Retail Holdings IV-D LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
WC |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
6,054,898* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
6,054,898* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
6,054,898* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
þ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 9 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Retail Holdings V LP
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
WC |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
20,371,862* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
20,371,862* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
20,371,862* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
þ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%* |
14 |
TYPE OF REPORTING PERSON
PN |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 10 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
BW Purchaser, LLC |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
18,432,857* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
18,432,857* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
18,432,857* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.9%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 11 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Asset Management Inc.
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
CO |
* See Item 5.
CUSIP No. 370023103 | Page 12 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Partners Limited
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
CO |
* See Item 5.
CUSIP No. 370023103 | Page 13 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Holdings Canada Inc.
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
306,201,050* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
306,201,050* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
306,201,050* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.5%* |
14 |
TYPE OF REPORTING PERSON
CO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 14 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Asset Management Private Institutional Capital Adviser (Canada) LP
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
306,201,050* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
306,201,050* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
306,201,050* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.5%* |
14 |
TYPE OF REPORTING PERSON
PN |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 15 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Private Funds Holdings Inc.
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
306,201,050* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
306,201,050* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
306,201,050* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.5%* |
14 |
TYPE OF REPORTING PERSON
CO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 16 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Property General Partner Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
CO |
* See Item 5.
CUSIP No. 370023103 | Page 17 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Property GP L.P. |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
PN |
* See Item 5.
CUSIP No. 370023103 | Page 18 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Property L.P. |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
PN |
* See Item 5.
CUSIP No. 370023103 | Page 19 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield BPY Holdings (US) Inc. |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
CO |
* See Item 5.
CUSIP No. 370023103 | Page 20 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
CANHOLDCO 1 ULC |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
CO |
* See Item 5.
CUSIP No. 370023103 | Page 21 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
CANHOLDCO 3 ULC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
CO |
* See Item 5.
CUSIP No. 370023103 | Page 22 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
CANHOLDCO 4 ULC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
CO |
* See Item 5.
CUSIP No. 370023103 | Page 23 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
CANHOLDCO 2 ULC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
CO |
* See Item 5.
CUSIP No. 370023103 | Page 24 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield BPY Retail Holdings I LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
440,610,621* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
440,610,621* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
440,610,621* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.1%* |
14 |
TYPE OF REPORTING PERSON
OO |
* See Item 5.
CUSIP No. 370023103 | Page 25 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield BPY Retail Holdings II LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
370,495,744* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
370,495,744* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
370,495,744* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.2%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 26 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield BPY Retail Holdings III LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
70,114,877* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
70,114,877* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
70,114,877* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.5%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 27 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
Brookfield Retail Holdings Warrants LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
20,997,838* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
20,997,838* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
20,997,838* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 28 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
BPY Retail III LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
306,201,050* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
306,201,050* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
306,201,050* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.5%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
CUSIP No. 370023103 | Page 29 of 37 Pages |
SCHEDULE 13D
1 |
NAME OF REPORTING PERSONS
BPY Retail IV LLC
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o (b) þ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
AF |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
o |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
61,444,210* | |
9 |
SOLE DISPOSITIVE POWER
0 | |
10 |
SHARED DISPOSITIVE POWER
61,444,210* |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
61,444,210* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.5%* |
14 |
TYPE OF REPORTING PERSON
OO |
* The Reporting Person may be deemed to be a member of a “group” with the other Reporting Persons and, therefore, may be deemed to beneficially own the 440,610,621 shares of Common Stock held by all of the Reporting Persons in the aggregate, representing 43.1% of the shares of Common Stock. See Item 5.
Pursuant to Rule 13d-2 promulgated under the Act, this Schedule 13D/A (this “Amendment No. 8”) amends the Schedule 13D filed on November 19, 2010 (the “Original Schedule 13D”) and amended on November 24, 2010 (“Amendment No. 1”), January 19, 2011 (“Amendment No. 2”), January 28, 2011 (“Amendment No. 3”), May 12, 2011 (“Amendment No. 4”), August 27, 2012 (“Amendment No. 5”), September 11, 2012 (“Amendment No. 6”) and January 3, 2013 (“Amendment No. 7”) (the Original Schedule 13D, Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6, Amendment No. 7 and Amendment No. 8 are collectively referred to herein as the “Schedule 13D”). This Amendment No. 8 relates to the common stock, par value $0.01 per share (“Common Stock”), of General Growth Properties, Inc., a Delaware corporation (the “Company”).
This Amendment No. 8 is being filed to update the beneficial ownership information in the Schedule 13D as a result of the BPY Transactions (as defined in Item 4) including the removal of the persons identified in Item 5(e) as reporting persons on this Schedule 13D and the addition of certain persons identified in Item 2 as reporting persons on this Schedule 13D.
Item 2. Identity and Background
Item 2 of the Schedule 13D is hereby amended and restated in its entirety as follows:
(a) This Schedule 13D is being filed by each of the following persons (each, a “Reporting Person” and collectively, the “Reporting Persons”):
(i) Brookfield Asset Management Inc. (“Brookfield”), a corporation formed under the laws of the Province of Ontario;
(ii) Partners Limited (“Partners Limited”), a corporation formed under the laws of the Province of Ontario, that, collectively, with its shareholders, owns, directly or indirectly, exercises control or direction over, has contractual arrangements, such as options, to acquire or otherwise holds beneficial or economic interests in approximately 127 million Class A Limited Voting Shares, representing approximately 19% of the outstanding Class A Limited voting Shares of Brookfield on a fully diluted basis, and 85,120 Class B Limited Voting Shares, representing 100% of the Class B Limited Voting Shares of Brookfield;
(iii) Brookfield Holdings Canada Inc. (“BHC”), a corporation formed under the laws of the Province of Ontario and a wholly-owned subsidiary of Brookfield;
(iv) Brookfield Private Funds Holdings Inc. (“Brookfield Holdings”), a corporation formed under the laws of the Province of Ontario and a wholly-owned subsidiary of BHC;
(v) Brookfield Asset Management Private Institutional Capital Adviser (Canada) LP (“BAM Canada”), a limited partnership formed under the laws of the Province of Manitoba, of which Brookfield Holdings is the sole general partner;
(vi) Brookfield Property General Partner Limited (“BP Limited”), a company formed under the laws of Bermuda and the general partner of Property GP (defined below);
(vii) Brookfield Property GP L.P. (“Property GP”), a limited partnership formed under the laws of Bermuda and the general partner of Holding LP (defined below);
(viii) Brookfield Property L.P. (“Holding LP”), a limited partnership formed under the laws of Bermuda;
(ix) Brookfield Retail Holdings II LLC (“BRH II”), a Delaware limited liability company, of which BAM Canada is the sole managing member;
30 |
(x) Brookfield Retail Holdings III LLC (“BRH III”), a Delaware limited liability company, of which BAM Canada is the sole managing member;
(xi) Brookfield Retail Holdings IV-A LLC (“BRH IV-A”), a Delaware limited liability company, of which BAM Canada is the sole managing member;
(xii) Brookfield Retail Holdings IV-B LLC (“BRH IV-B”), a Delaware limited liability company, of which BAM Canada is the sole managing member;
(xiii) Brookfield Retail Holdings IV-C Sub LLC (“New BRH IV-C”), a Delaware limited liability company, of which BAM Canada is the sole managing member;
(xiv) Brookfield Retail Holdings IV-D LLC (“BRH IV-D”), a Delaware limited liability company, of which BAM Canada is the sole managing member;
(xv) Brookfield Retail Holdings V LP (“BRH V”), a Delaware limited partnership, of which BAM Canada is the sole general partner;
(xvi) BW Purchaser, LLC (“BWP”), a Delaware limited liability company;
(xvii) Brookfield BPY Holdings (US) Inc. (“CanHoldco”), a corporation formed under the laws of Ontario and a subsidiary of Holding LP;
(xviii) CANHOLDCO 1 ULC (“CanHoldco 1”), an unlimited liability company formed under the laws of Alberta and a subsidiary of CanHoldco;
(xix) CANHOLDCO 3 ULC (“CanHoldco 3”), an unlimited liability company formed under the laws of Alberta and a subsidiary of CanHoldco 1;
(xx) CANHOLDCO 4 ULC (“CanHoldco 4”), an unlimited liability company formed under the laws of Alberta and a subsidiary of CanHoldco;
(xxi) CANHOLDCO 2 ULC (“CanHoldco 2”), an unlimited liability company formed under the laws of Alberta and a subsidiary of CanHoldco 3 and CanHoldco 4;
(xxii) Brookfield BPY Retail Holdings I LLC (“BPY Holdings I”), a Delaware limited liability company and a subsidiary of CanHoldco 2;
(xxiii) Brookfield BPY Retail Holdings II LLC (“BPY Holdings II”), a Delaware limited liability company and a subsidiary of BPY Holdings I;
(xxiv) BPY Retail III LLC (“BPY III”), a Delaware limited liability company and a subsidiary of BPY Holdings II;
(xxv) Brookfield Retail Holdings VII LLC (“BRH VII”), a Delaware limited liability company, of which BAM Canada is the sole managing member;
(xxvi) Brookfield Retail Holdings Warrants LLC (“BRH Warrants”), a Delaware limited liability company, of which BAM Canada is the sole managing member;
(xxvii) Brookfield BPY Retail Holdings III LLC (“BPY Holdings III”), a Delaware limited liability company and a subsidiary of BPY Holdings I; and
31 |
(xxviii) BPY Retail IV LLC (“BPY IV”), a Delaware limited liability company and a subsidiary of BPY Holdings III.
Schedule I to the Original 13D, with respect to Brookfield, Schedule II to the Original 13D, with respect to BHC, Schedule III to the Original 13D, with respect to Brookfield Holdings, Schedule VIII to the Original 13D with respect to BRH II, Schedule IX to the Original 13D with respect to BRH III, Schedule X to the Original 13D with respect to BRH IV-A, Schedule XI to this Amendment No. 8 with respect to BRH IV-B, Schedule XII to the to this Amendment No. 8 with respect to New BRH IV-C, Schedule XIII to the Original 13D with respect to BRH IV-D, Schedule XIV to the Original 13D with respect to BRH V, Schedule XVIII to Amendment No. 5 with respect to Partners Limited, Schedule XIX to Amendment No. 7 with respect to BWP, Schedule XX to this Amendment No. 8 with respect to BP Limited, Schedule XXI to this Amendment No. 8 with respect to CanHoldco, Schedule XXII to this Amendment No. 8 with respect to CanHoldco 1, Schedule XXIII to this Amendment No. 8 with respect to CanHoldco 3, Schedule XXIV to this Amendment No. 8 with respect to CanHoldco 4, Schedule XXV to this Amendment No. 8 with respect to CanHoldco 2, Schedule XXVI to this Amendment No. 8 with respect to BPY Holdings I, Schedule XXVII to this Amendment No. 8 with respect to BPY Holdings II, Schedule XXVIII to this Amendment No. 8 with respect to BPY III, Schedule XXIX to this Amendment No. 8 with respect to BRH VII, Schedule XXX to this Amendment No. 8 with respect to BRH Warrants, Schedule XXXI to this Amendment No. 8 with respect to BPY Holdings III, and Schedule XXXII to this Amendment No. 8 with respect to BPY IV, set forth lists of all of the directors and executive officers or persons holding equivalent positions (the “Scheduled Persons”) of each such Reporting Person.
(b) The principal business address of each of Brookfield, Partners Limited, BHC, CanHoldco 1, CanHoldco 3, CanHoldco 4, CanHoldco 2 and CanHoldco is 181 Bay Street, Suite 300, Toronto, Ontario, Canada M5J 2T3. The principal business address of each of BP Limited, Property GP and Holding LP is 73 Front Street, 5th Fl Hamilton HM 12 Bermuda. The principal address of each of Brookfield Holdings, BAM Canada, BRH II, BRH III, BRH IV-A, BRH IV-B, New BRH IV-C, BRH IV-D, BRH V, BWP, BRH VII, BPY Holdings I, BPY Holdings II, BPY III, BRH Warrants, BPY Holdings III, and BPY IV is 4 Brookfield Place, 250 Vesey Street, New York, NY 10281-1021.
Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V, Schedule VI, Schedule VII, Schedule VIII, Schedule IX, Schedule X, Schedule XIII and Schedule XIV to the Original 13D, Schedule XVI and Schedule XVII to Amendment No. 3, Schedule XVIII to Amendment No. 5, Schedule XIX to Amendment No. 7, and Schedule XI, Schedule XII, Schedule XX, Schedule XXI, Schedule XXII, Schedule XXIII, Schedule XXIV, Schedule XXV, Schedule XXVI, Schedule XXVII, Schedule XXVIII, Schedule XXIX, Schedule XXX, Schedule XXXI and Schedule XXXII to this Amendment No. 8 set forth the principal business address of each Scheduled Person.
(c) The principal business of Brookfield is to invest and operate businesses in the real estate, power generation and infrastructure sectors. The principal business of each of Partners Limited, BHC, Brookfield Holdings, BP Limited, Holding LP, CanHoldco, CanHoldco 1, CanHoldco 3, CanHoldco 4, CanHoldco 2, BPY Holdings I, BPY Holdings II, BPY III and BPY Holdings III is to serve as a holding company. The principal business of Property GP is to serve as general partner of Holding LP. The principal business of BAM Canada is to serve as investment manager, managing member or general partner, as applicable, for a variety of certain private investment vehicles, including each of the Investment Vehicles (as defined below). The principal activity of each of BRH II, BRH III, BRH IV-A, BRH IV-B, New BRH IV-C, BRH IV-D, BRH V, BRH VII and BRH Warrants (each, an “Investment Vehicle”) and BWP and BPY IV is to serve as a special purpose entity for the purpose of making certain investments, including investments in the Company.
Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V, Schedule VI, Schedule VII, Schedule VIII, Schedule IX, Schedule X, Schedule XIII and Schedule XIV to the Original 13D, Schedule XVI and Schedule XVII to Amendment No. 3, Schedule XVIII to Amendment No. 5, Schedule XIX to Amendment No. 7, and Schedule XI, Schedule XII, Schedule XX, Schedule XXI, Schedule XXII, Schedule XXIII, Schedule XXIV, Schedule XXV, Schedule XXVI, Schedule XXVII, Schedule XXVIII, Schedule XXIX, Schedule XXX, Schedule XXXI and Schedule XXXII to this Amendment No. 8 set forth the principal occupation or employment of each Scheduled Person.
32 |
(d),(e) During the last five years, none of the Reporting Persons nor any of the Scheduled Persons (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V, Schedule VI, Schedule VII, Schedule VIII, Schedule IX, Schedule X, Schedule XIII and Schedule XIV to the Original 13D, Schedule XVI and Schedule XVII to Amendment No. 3, Schedule XVIII to Amendment No. 5, Schedule XIX to Amendment No. 7, and Schedule XI, Schedule XII, Schedule XX, Schedule XXI, Schedule XXII, Schedule XXIII, Schedule XXIV, Schedule XXV, Schedule XXVI, Schedule XXVII, Schedule XXVIII, Schedule XXIX, Schedule XXX, Schedule XXXI and Schedule XXXII to this Amendment No. 8 set forth the citizenships of each of the Scheduled Persons who is a natural person.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Schedule 13D is hereby amended to include:
On April 12, 2013, Brookfield acquired certain Class A Interests in BRH IV-A pursuant to the terms of a Membership Interest Purchase Agreement, dated April 12, 2013 (the “BRH IV-A Membership Interest Purchase Agreement”), by and between Brookfield and VFF Investments III LLC, a Cayman Island limited liability company. In connection with the acquisition of such Class A Interests, Brookfield indirectly acquired an additional pecuniary interest in the shares of Common Stock and Warrants held by BRH IV-A. BRH IV-A directly owns Common Stock and Warrants and other securities not issued by the Company. The consideration paid by Brookfield was comprised of $46,938,611.33 in cash and a promissory note in the amount of $46,938,611.33 payable by CanHoldco.
On April 12, 2013, Brookfield acquired certain Class A Interests in New BRH IV-C pursuant to the terms of Membership Interest Purchase Agreements, dated April 12, 2013 (the “BRH IV-C Membership Interest Purchase Agreements”), by and among Brookfield and David Tepper, Tepper Family 2012 Irrevocable Trust A and Little Dog II LLC. In connection with the acquisition of such Class A Interests, Brookfield indirectly acquired an additional pecuniary interest in the shares of Common Stock and Warrants held by New BRH IV-C. New BRH IV-C directly owns Common Stock and Warrants and other securities not issued by the Company. The consideration paid by Brookfield was comprised of $31,325,710.67 in cash in the aggregate.
On April 12, 2013, Brookfield acquired certain Class A Interests in BRH IV-D pursuant to the terms of a Membership Interest Purchase Agreement, dated April 12, 2013 (the “BRH IV-D Membership Interest Purchase Agreement” and, together with the BRH IV-A Membership Interest Purchase Agreement and the BRH IV-C Membership Interest Purchase Agreements, the “Interest Purchase Agreements”), by and between Brookfield and The Townsend Consortium Geneva Investment, LLC. In connection with the acquisition of such Class A Interests, Brookfield indirectly acquired an additional pecuniary interest in the shares of Common Stock and Warrants held by BRH IV-D. BRH IV-D directly owns Common Stock and Warrants and other securities not issued by the Company. The consideration paid by Brookfield was comprised of $31,454,089.33 in cash.
The summaries contained herein of the BRH IV-A Membership Interest Purchase Agreement, the BRH IV-C Membership Interest Purchase Agreements and the BRH IV-D Membership Interest Purchase Agreement are not intended to be complete and are qualified in their entirety by reference to the full text of the BRH IV-A Membership Interest Purchase Agreement, the BRH IV-C Membership Interest Purchase Agreements and the BRH IV-D Membership Interest Purchase Agreement, as applicable, a copy of which is filed as Exhibit 26, 27 and 28 hereto, respectively, and each of which is incorporated herein by reference.
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Item 4. Purpose of the Transaction
Item 4 of the Schedule 13D is hereby amended to include:
The descriptions of the Interest Purchase Agreements and the transactions contemplated thereby set forth in Item 3 of this Amendment No. 8 are incorporated by reference into Item 4.
On April 12, 2013, BRH IV-C merged with New BRH IV-C, with New BRH IV-C the surviving entity in the merger. Following the merger, the ownership of New BRH IV-C was identical to the pre-merger ownership of BRH IV-C. New BRH IV-C has been included as a reporting person on this Schedule 13D.
On April 12, 2013, Brookfield and certain entities controlled by Brookfield effected an internal reorganization (the “BPY Transactions”) resulting in the consolidation of substantially all of Brookfield’s commercial property operations, including its office, retail, multi-family and industrial assets, in Brookfield Property Partners L.P., a Bermuda exempted limited partnership (“BPY”). In connection with the BPY Transactions, certain entities controlled by Brookfield caused Common Stock and Warrants, and entities holding Common Stock and Warrants, to be consolidated under BPY.
Item 5 of this Amendment No. 8 sets forth the beneficial ownership of the Reporting Persons following the BPY Transactions.
On April 15, 2013, Brookfield distributed interests in BPY to holders of Brookfield’s Class A and Class B limited voting shares by way of a special dividend of units of BPY.
Item 5. Interest in Securities of the Issuer
Item 5(a)-(c) and (e) of the Schedule 13D is hereby amended in its entirety as follows:
(a)-(b) As of the close of business on April 12, 2013, the Investment Vehicles directly held and beneficially owned the shares of Common Stock and Warrants indicated on the following table. Each of the Investment Vehicles shares voting and investment power as indicated in the paragraphs below the table. All calculations of percentages of beneficial ownership in this Item 5 and elsewhere in this Schedule 13D are based on the 939,357,189 shares of Common Stock reported by the Company as outstanding as of February 25, 2013 as reported in its Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 28, 2013, plus, where such beneficial ownership includes Warrants, such number of shares of Common Stock issuable upon exercise of the Warrants included in any such beneficial ownership calculation.
Investment Vehicle | Common Stock | Warrants | Beneficial Ownership | |||||||||
BRH VII | 79,094,965 | - | 8.42 | % | ||||||||
BRH Warrants | - | 20,997,838 | 2.19 | % | ||||||||
BRH II | 53,879,801 | 14,408,735 | 7.16 | % | ||||||||
BRH III | 61,803,287 | 16,527,664 | 8.19 | % | ||||||||
BRH IV-A | 7,108,442 | 1,910,902 | 0.96 | % | ||||||||
BRH IV-B (1) | 14,195,099 | 3,814,096 | 1.91 | % | ||||||||
New BRH IV-C | 4,755,658 | 1,277,803 | 0.64 | % | ||||||||
BRH IV-D | 4,777,095 | 1,277,803 | 0.64 | % | ||||||||
BRH V | 16,071,703 | 4,300,159 | 2.16 | % | ||||||||
Total: | 241,686,050 | 64,515,000 | 30.50 | % |
(1) The shares of Common Stock and Warrants are held directly by Brookfield US Retail Holdings LLC. Pursuant to the BRH IV-B Agreement, BRH IV-B shares investment and voting power (but not with Brookfield US Retail Holdings LLC) over the shares of Common Stock and Warrants held directly by Brookfield US Retail Holdings LLC.
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As managing member or general partner, as applicable, of each of the Investment Vehicles, BAM Canada may be deemed, subject to restrictions on its authority imposed by the Voting Agreement, to beneficially own all shares of Common Stock and Warrants owned by each of the Investment Vehicles, consisting of 241,686,050 shares of Common Stock and Warrants exercisable to purchase 64,515,000 shares of Common Stock, collectively representing 30.5% of the Common Stock. As direct and indirect controlling persons of BAM Canada, each of Brookfield Holdings, BHC and Brookfield may be deemed to share with BAM Canada beneficial ownership of such shares of Common Stock and Warrants.
BPY III is the controlling non-managing member of BRH VII. By virtue of (i) its ability under the Operating Agreement of BRH VII to appoint and remove the board of directors of BRH VII and (ii) the ability of the board of directors of BRH VII to direct BAM Canada on behalf of BRH VII to veto any action requiring a hyper-majority vote under the Voting Agreement (including voting decisions with respect to, and material dispositions of, Common Stock by the Investment Vehicles), BPY III may be deemed to share voting and investment power with respect to the 306,201,050 shares of Common Stock owned by the Investment Vehicles, representing approximately 30.5% of the shares of the Common Stock. As direct and indirect controlling persons of BPY III, each of BPY Holdings II, BPY Holdings I, CanHoldco, CanHoldco 2, CanHoldco 3, CanHoldco 4, CanHoldco 1, Holding LP, Property GP, BP Limited and Brookfield may be deemed to share with BPY III beneficial ownership of such shares of Common Stock and Warrants.
As of the close of business on April 12, 2013, BPY Retail II LLC, a Delaware limited liability company (“BPY II”), directly held 8,670,667 shares of Common Stock, representing approximately 0.9% of the shares of Common Stock, and BPY Retail VI LLC, a Delaware limited liability company (“BPY VI”), directly held 37,191,170 shares of Common Stock representing approximately 4.0% of the shares of Common Stock. As direct and indirect controlling persons of BPY II and BPY VI, each of BPY Holdings II, BPY Holdings I, CanHoldco, CanHoldco 2, CanHoldco 3, CanHoldco 4, CanHoldco 1, Holding LP, Property GP, BP Limited and Brookfield may be deemed to share with BPY III, BPY II and BPY VI beneficial ownership of such shares of Common Stock.
As of the close of business on April 12, 2013, BPY IV directly held 61,444,210 shares of Common Stock, representing approximately 6.5% of the shares of Common Stock, and BPY Retail V LLC, a Delaware limited liability company (“BPY V”), directly held 8,670,667 shares of Common Stock, representing approximately 0.9% of the shares of Common Stock. As direct and indirect controlling persons of BPY IV and BPY V, each of BPY Holdings III, BPY Holdings I, CanHoldco, CanHoldco 2, CanHoldco 3, CanHoldco 4, CanHoldco 1, Holding LP, Property GP, BP Limited and Brookfield may be deemed to share with BPY IV and BPY V beneficial ownership of such shares of Common Stock.
As of the close of business on April 12, 2013, BWP beneficially owned approximately 18,432,857 shares of Common Stock issuable upon exercise of the Warrants, representing approximately 1.9% of the shares of Common Stock. As direct and indirect controlling persons of BWP, each of BPY Holdings II, BPY Holdings I, CanHoldco, CanHoldco 2, CanHoldco 3, CanHoldco 4, CanHoldco 1, Holding LP, Property GP, BP Limited and Brookfield may be deemed to share with BWP, beneficial ownership of such 18,432,857 shares of Common Stock issuable upon exercise of the Warrants, representing approximately 1.9% of the shares of Common Stock.
None of the Reporting Persons has sole voting or investment power with respect to any shares of Common Stock or Warrants.
By virtue of the various agreements and arrangements among the Reporting Persons described in this Schedule 13D, the Reporting Persons may be deemed to constitute a “group” within the meaning of Section 13(d)(3) under the Act and Rule 13d-5(b)(1) thereunder and each member of the “group” may be deemed to beneficially own all shares of Common Stock and Warrants held by all members of the “group.” Accordingly, each of the Reporting Persons may be deemed to beneficially own 440,610,621 shares of Common Stock (which includes the 64,515,000 shares of Common Stock issuable upon exercise of the Warrants held by all Reporting Persons), constituting beneficial ownership of 43.1% of the shares of the Common Stock. Each of the Investment Vehicles expressly disclaims, to the extent permitted by applicable law, beneficial ownership of any shares of Common Stock and Warrants held by each of the other Investment Vehicles. Each of the Investment Vehicles expressly disclaims, to the extent permitted by applicable law, beneficial ownership of any shares of Common Stock held directly by BWP, BPY II, BPY VI, BPY IV or BPY V. Each of BWP, BPY II, BPY VI, BPY IV, BPY V and BPY Holdings II expressly disclaims, to the extent permitted by applicable law, beneficial ownership of any shares of Common Stock and Warrants held by the Investment Vehicles.
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By virtue of (i) the ability of the Northern Trust Company, acting in its capacity as custodian for the Future Fund Board of Guardians (“Future Fund”) under the Operating Agreement of BRH II to appoint and remove the members of the board of directors of BRH II and (ii) the ability of the board of directors of BRH II to direct BAM Canada on behalf of BRH II to veto any action requiring a hyper-majority vote under the Voting Agreement (including voting decisions and material dispositions of Common Stock by the Investment Vehicles), Future Fund may be deemed to share voting and investment power over the Common Stock and Warrants held by each of the Investment Vehicles. By virtue of (i) the ability of Stable Investment Corporation (“Stable”) and Best Investment Corporation (“Best” and, together with Stable, “SB”) (both subsidiaries of China Investment Corporation) under the Operating Agreement of BRH III to appoint and remove the members of the board of directors of BRH III and (ii) the ability of the board of directors of BRH III to direct BAM Canada on behalf of BRH III to veto any action requiring a hyper-majority vote under the Voting Agreement (including voting decisions and material dispositions of Common Stock by the Investment Vehicles), SB may be deemed to share voting and investment power over the Common Stock and Warrants held by each of the Investment Vehicles. Additionally, by virtue of the various agreements and arrangements among the Reporting Persons described in this Schedule 13D, Future Fund and/or SB may be deemed to be members of a “group” with the Reporting Persons. Neither Future Fund nor SB are Reporting Persons on this Schedule 13D, and any obligations either of them may have under Section 13(d) of the Act would have to be satisfied on one or more separate filings. To the extent that either Future Fund or SB beneficially owns shares of Common Stock or Warrants that are not held by one of the Investment Vehicles, the Reporting Persons may be deemed to beneficially own any such shares of Common Stock or Warrants, but expressly disclaim, to the extent permitted by applicable law, beneficial ownership thereof.
(c) Except as otherwise described in Item 3 and Item 4 of this Schedule 13D, none of the Reporting Persons, nor, to their knowledge, any of the Scheduled Persons, has effected any transaction in Common Stock during the past sixty days.
(e) Each of US Holdings, US Corp., BRGP, Split LP, BRH, BR Split II and BRH IV-C and BRH VI ceased to be a beneficial owner of more than five percent (5%) of the shares of Common Stock outstanding as of April 12, 2013.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Item 6 of the Schedule 13D is hereby amended to include the following:
Item 3 and Item 4 to this Amendment No. 8 are incorporated by reference.
Pursuant to Rule 13d-1(k) promulgated under the Act, the Reporting Persons have entered into an agreement on April 16, 2013, with respect to the joint filing of this Amendment No. 8 and any amendment or amendments hereto (the “Joint Filing Agreement”). The Joint Filing Agreement is attached hereto as Exhibit 29.
Item 7. Material To Be Filed as Exhibits
Item 7 of Schedule 13D is hereby amended to include the following:
Exhibit 26 | Membership Interest Purchase Agreement, dated April 12, 2013, by and between Brookfield Asset Management Inc. and VFF Investments III LLC. |
Exhibit 27 | Membership Interest Purchase Agreements, dated April 12, 2013, by and among Brookfield Asset Management Inc. and David Tepper, Tepper Family 2012 Irrevocable Trust A and Little Dog II LLC. |
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Exhibit 28 | Membership Interest Purchase Agreement, dated April 12, 2013, by and between Brookfield Asset Management Inc. and The Townsend Consortium Geneva Investment, LLC. |
Exhibit 29 | Joint Filing Agreement, dated as of April 16, 2013, by and among Brookfield Asset Management Inc., Partners Limited, Brookfield Holdings Canada Inc., Brookfield Private Funds Holdings Inc., Brookfield Asset Management Private Institutional Capital Adviser (Canada) LP, Brookfield Property General Partner Limited, Brookfield Property GP L.P., Brookfield Property L.P., Brookfield Retail Holdings II LLC, Brookfield Retail Holdings III LLC, Brookfield Retail Holdings IV-A LLC, Brookfield Retail Holdings IV-B LLC, Brookfield Retail Holdings IV-C Sub LLC, Brookfield Retail Holdings IV-D LLC, Brookfield Retail Holdings V LP, BW Purchaser, LLC, Brookfield BPY Holdings (US) Inc., CANHOLDCO 1 ULC, CANHOLDCO 3 ULC, CANHOLDCO 4 ULC, CANHOLDCO 2 ULC, Brookfield BPY Retail Holdings I LLC, Brookfield BPY Retail Holdings II LLC, BPY Retail III LLC, Brookfield Retail Holdings VII LLC, Brookfield Retail Holdings Warrants LLC, Brookfield BPY Retail Holdings III LLC and BPY Retail IV LLC. |
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SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Dated: April 16, 2013 | BROOKFIELD ASSET MANAGEMENT INC. | |
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Managing Partner | ||
By: | /s/ Joseph Freedman | |
Name: Joseph Freedman | ||
Title: Senior Managing Partner | ||
Dated: April 16, 2013 | PARTNERS LIMITED | |
By: | /s/ Loretta Corso | |
Name: Loretta Corso | ||
Title: Secretary | ||
Dated: April 16, 2013 | Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P. | |
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD PRIVATE FUNDS HOLDINGS INC. | |
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director |
Dated: April 16, 2013 | BROOKFIELD HOLDINGS CANADA INC. | |
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Vice President | ||
By: | /s/ Joseph Freedman | |
Name: Joseph Freedman | ||
Title: Vice President | ||
Dated: April 16, 2013 | BROOKFIELD PROPERTY GENERAL PARTNER LIMITED | |
By: | /s/ Jane Sheere | |
Name: Jane Sheere | ||
Title: Secretary | ||
Dated: April 16, 2013 | Brookfield Property GP L.P. | |
By: 1648287 Alberta ULC, its general partner | ||
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | Brookfield Property L.P. | |
By: Brookfield Property GP LP, its general partner | ||
By: 1648287 Alberta ULC, its general partner | ||
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD BPY HOLDINGS (US) INC. | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer |
Dated: April 16, 2013 | CANHOLDCO 1 ULC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | CANHOLDCO 3 ULC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | CANHOLDCO 4 ULC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | CANHOLDCO 2 ULC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD BPY RETAIL HOLDINGS I LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer | ||
Dated: April 16, 2013 | Brookfield BPY Retail Holdings II LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer | ||
Dated: April 16, 2013 | BPY Retail III LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer |
Dated: April 16, 2013 | Brookfield Retail Holdings VII LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS WARRANTS LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD BPY RETAIL HOLDINGS III LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer | ||
Dated: April 16, 2013 | BPY RETAIL IV LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS II LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director |
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS III LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Vice President | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS IV-A LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS IV-B LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director |
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS IV-C SUB LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Alex Novakovic | |
Name: Alex Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS IV-D LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Alex Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS V LP | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its general partner | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director |
Dated: April 16, 2013 | BW PURCHASER, LLC | |
By: | /s/ Karen Ayre | |
Name: Karen Ayre | ||
Title: Vice President |
SCHEDULE XII
Brookfield Retail Holdings IV-C Sub LLC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Barry Blattman, Director | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Senior Managing Partner, Executive of Brookfield Asset Management Inc. | USA |
Ric Clark, Director |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Chief Executive Officer, Executive of Brookfield Asset Management Inc. | USA |
Cyrus Madon, Director | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Senior Managing Partner Brookfield Asset Management Inc. | Canadian |
SCHEDULE XX
Brookfield Property General Partner Limited
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
James A. Bodi, Director | Canon’s Court, 22 Victoria Street, Hamilton HM 12 Bermuda | Appleby (Bermuda) Limited, Counsel |
Canadian |
Brett Fox, Vice President | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Managing Partner, Corporate Operations of Brookfield Asset Management Inc. | USA |
Louis J. Maroun, Director |
Full Fathoms, 2 Dill Lane, Devonshire, DV 07, Bermuda | Chairman-Sigma Capital Corporation | Canadian |
Gregory N. McConnie, President |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | President and CEO, Brookfield International Bank Inc | Barbadian |
Jane Sheere, Secretary | 73 Front Street, 5th Floor, Hamilton HM 12, Bermuda | Assistant Corporate Secretary, Brookfield Infrastructure Group, Brookfield Infrastructure Partners L.P | British |
SCHEDULE XXI
Brookfield BPY Holdings (US) Inc.
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Brett M. Fox, Director | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Managing Partner, Corporate Operations of Brookfield Asset Management Inc. | USA |
David D. Arthur, Director |
Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner & President, Strategic Initiatives of Brookfield Asset Management Inc. | Canadian |
Steven J. Douglas, Director |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Chief Financial Officer, Brookfield Global Real Estate | Canadian |
SCHEDULE XXII
CANHOLDCO 1 ULC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Brett M. Fox, Director |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Managing Partner, Corporate Operations of Brookfield Asset Management Inc. | USA |
David D. Arthur, Director | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner & President, Strategic Initiatives of Brookfield Asset Management Inc. |
Canadian |
Steven J. Douglas, Director, President, Chief Financial Officer |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 |
Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Aleks Novakovic, Managing Partner | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner, Tax of Brookfield Asset Management Inc. | Canadian |
Michelle Campbell, Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management Inc. |
Canadian |
Phyllis F. Moore, Assistant Secretary |
Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Senior Corporate Law Clerk, Corporate Secretary, Legal & Compliance Services of Brookfield Asset Management Inc. | Canadian |
SCHEDULE XXIII
CANHOLDCO 3 ULC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Brett M. Fox, Director |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Managing Partner, Corporate Operations of Brookfield Asset Management Inc. | USA |
David D. Arthur, Director | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner & President, Strategic Initiatives of Brookfield Asset Management Inc. |
Canadian |
Steven J. Douglas, Director, President, Chief Financial Officer |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 |
Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Aleks Novakovic, Managing Partner | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner, Tax of Brookfield Asset Management Inc. | Canadian |
Michelle Campbell, Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management Inc. |
Canadian |
Phyllis F. Moore, Assistant Secretary |
Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Senior Corporate Law Clerk, Corporate Secretary, Legal & Compliance Services of Brookfield Asset Management Inc. | Canadian |
SCHEDULE XXIV
CANHOLDCO 4 ULC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Brett M. Fox, Director |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Managing Partner, Corporate Operations of Brookfield Asset Management Inc. | USA |
David D. Arthur, Director | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner & President, Strategic Initiatives of Brookfield Asset Management Inc. |
Canadian |
Steven J. Douglas, Director, President, Chief Financial Officer |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 |
Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Aleks Novakovic, Managing Partner | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner, Tax of Brookfield Asset Management Inc. | Canadian |
Michelle Campbell, Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management Inc. |
Canadian |
Phyllis F. Moore, Assistant Secretary |
Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Senior Corporate Law Clerk, Corporate Secretary, Legal & Compliance Services of Brookfield Asset Management Inc. | Canadian |
SCHEDULE XXV
CANHOLDCO 2 ULC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Brett M. Fox, Director |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Managing Partner, Corporate Operations of Brookfield Asset Management Inc. | USA |
David D. Arthur, Director | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner & President, Strategic Initiatives of Brookfield Asset Management Inc. |
Canadian |
Steven J. Douglas, Director, President, Chief Financial Officer |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 |
Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Aleks Novakovic, Managing Partner | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Managing Partner, Tax of Brookfield Asset Management Inc. | Canadian |
Michelle Campbell, Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management Inc. |
Canadian |
Phyllis F. Moore, Assistant Secretary |
Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Senior Corporate Law Clerk, Corporate Secretary, Legal & Compliance Services of Brookfield Asset Management Inc. | Canadian |
SCHEDULE XXVI
Brookfield BPY Retail Holdings I LLC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Steven J. Douglas, Director, President, Chief Financial Officer |
4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 |
Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Gregory McConnie, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | President and CEO, Brookfield International Bank Inc | Barbadian |
Terry V. Gittens, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | Chief Financial Officer, Brookfield International Bank Inc. | Barbadian |
Jane Sheere, Secretary | 73 Front Street, 5th Floor, Hamilton HM 12, Bermuda | Assistant Corporate Secretary, Brookfield Infrastructure Group, Brookfield Infrastructure Partners L.P | British |
Michelle Campbell, Assistant Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management Inc. |
Canadian |
SCHEDULE XXVII
Brookfield BPY Retail Holdings II LLC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Steven J. Douglas, Director, President, Chief Financial Officer | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Gregory McConnie, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | President and CEO, Brookfield International Bank Inc | Barbadian |
Terry V. Gittens, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | Chief Financial Officer, Brookfield International Bank Inc. | Barbadian |
Jane Sheere, Secretary | 73 Front Street, 5th Floor, Hamilton HM 12, Bermuda | Assistant Corporate Secretary, Brookfield Infrastructure Group, Brookfield Infrastructure Partners L.P | British |
Michelle Campbell, Assistant Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management Inc. |
Canadian |
SCHEDULE XXVIII
BPY Retail III LLC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Steven J. Douglas, Director, President, Chief Financial Officer | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Gregory McConnie, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | President and CEO, Brookfield International Bank Inc | Barbadian |
Terry V. Gittens, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | Chief Financial Officer, Brookfield International Bank Inc. | Barbadian |
Jane Sheere, Secretary | 73 Front Street, 5th Floor, Hamilton HM 12, Bermuda | Assistant Corporate Secretary, Brookfield Infrastructure Group, Brookfield Infrastructure Partners L.P | British |
Michelle Campbell, Assistant Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management, inc. |
Canadian |
SCHEDULE XXIX
Brookfield Retail Holdings VII LLC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Steven J. Douglas, Director, Director | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Gregory McConnie, Director |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | President and CEO, Brookfield International Bank Inc | Barbadian |
Terry V. Gittens, Director |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | Chief Financial Officer, Brookfield International Bank Inc. | Barbadian |
SCHEDULE XXX
Brookfield Retail Holdings Warrants LLC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Steven J. Douglas, Director, Director | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Gregory McConnie, Director |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | President and CEO, Brookfield International Bank Inc | Barbadian |
Terry V. Gittens, Director |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | Chief Financial Officer, Brookfield International Bank Inc. | Barbadian |
SCHEDULE XXXI
Brookfield BPY Retail Holdings III LLC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Steven J. Douglas, Director, President, Chief Financial Officer | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Gregory McConnie, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | President and CEO, Brookfield International Bank Inc | Barbadian |
Terry V. Gittens, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | Chief Financial Officer, Brookfield International Bank Inc. | Barbadian |
Jane Sheere, Secretary | 73 Front Street, 5th Floor, Hamilton HM 12, Bermuda | Assistant Corporate Secretary, Brookfield Infrastructure Group, Brookfield Infrastructure Partners L.P | British |
Michelle Campbell, Assistant Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management Inc. |
Canadian |
SCHEDULE XXXII
BPY Retail IV LLC
Name and Position of Officer or Director | Principal Business Address | Principal Occupation or Employment | Citizenship |
Steven J. Douglas, Director, President, Chief Financial Officer | 4 Brookfield Place, 250 Vesey St., 15th Fl New York, NY 10281 | Chief Financial Officer, Brookfield Global Real Estate |
Canadian |
Gregory McConnie, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | President and CEO, Brookfield International Bank Inc | Barbadian |
Terry V. Gittens, Manager |
Brookfield International Bank, Cedar Court 2nd Fl, Wildey Business Park, St. Michael, Barbados BB14006 | Chief Financial Officer, Brookfield International Bank Inc. | Barbadian |
Jane Sheere, Secretary | 73 Front Street, 5th Floor, Hamilton HM 12, Bermuda | Assistant Corporate Secretary, Brookfield Infrastructure Group, Brookfield Infrastructure Partners L.P | British |
Michelle Campbell, Assistant Secretary | Brookfield Place 181 Bay Street, Suite 300, Toronto, ON M5H 2T3 | Vice President, Compliance, Legal & Compliance Services of Brookfield Asset Management Inc. |
Canadian |
EXHIBIT 26
EXECUTION VERSION
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”), dated as of April 12, 2013, is entered into by and between Brookfield Asset Management Inc., an Ontario corporation (“Purchaser”), and VFF Investments III LLC, a Delaware limited liability company (the “Seller”).
RECITALS
WHEREAS, Seller owns of Class A Interests (as such term is defined in the LLC Agreement (as defined below)) of Brookfield Retail Holdings IV-A LLC (f/k/a Brookfield REP Investments IV-A LLC), a Delaware limited liability company (the “Company”) representing 99.298685 % of the Company Percentage Interest (as such term is defined in the LLC Agreement) of the Company;
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and Purchaser desires to purchase, acquire and assume from Seller (the “Transfer”), two thirds (2/3) of the Class A Interests owned by Seller (the “Transferred Interests”) in exchange for an aggregate purchase price of (x) $46,938,611.33 in cash (the “Cash Purchase Price”) and (y) $46,938,611.33 payable in the form of a note (the “Note Purchase Price” and together with the Cash Purchase Price, the “Purchase Price”) issued by Brookfield BPY Holdings Inc., an Ontario corporation (“CanHoldCo”), in the form attached hereto as Annex A;
WHEREAS, Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P., a Manitoba limited partnership (the “Managing Member”), is the managing member of the Company, and, by execution of this Agreement, desires to approve this Transfer as required under Article 10 of the LLC Agreement; and
WHEREAS, the parties hereto desire to document the Transfer of the Transferred Interests from Seller to Purchaser, in accordance with and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, each of which is made a part hereof, and the mutual promises, covenants and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Article
I
CERTAIN DEFINITIONS AND CONSTRUCTION
Section 1.1 Certain Definitions. As used in this Agreement, the following terms have the meanings set forth below:
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, Contract or otherwise.
“Business Day” means any day, other than a Saturday or Sunday, on which commercial banks are not required or authorized to close in New York, New York or Chicago, Illinois.
“Contract” means any agreement, obligation, contract, license, understanding, commitment, indenture or instrument, whether written or oral.
“Encumbrance” means any lien, pledge, charge, encumbrance, security interest, option, mortgage, easement, restriction (including restrictive covenants or deed restrictions in connection with environmental or remedial obligations), lease, sublease, right of way, right of refusal or offer, claim, restriction on transfer, restriction on voting or other similar restriction, including any voting agreement or proxy.
“Governmental Entity” means any federal, state, local or foreign government or any court, administrative body, agency or commission or other governmental or quasi-governmental entity, authority or instrumentality, domestic or foreign, with competent jurisdiction.
“Law” means any law, statute, ordinance, rule, regulation, directive, code or Order enacted, issued, promulgated, enforced or entered by any Governmental Entity.
“LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement (as amended to date) of Brookfield Retail Holdings IV-A LLC (f/k/a Brookfield REP Investments IV-A LLC, a Delaware limited liability company) dated as of October 25, 2010.
“Person” means an individual, a corporation, a general or limited partnership, an association, a limited liability company, a Governmental Entity, a trust or other entity or organization.
“Proceeding” means any suit, action, proceeding, arbitration, mediation, audit, hearing, inquiry or, to the knowledge of the Person in question, investigation (in each case, whether civil, criminal, administrative, investigative, formal or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity.
Section 1.2 Additional Definitions.
Agreement | Preamble |
Bankruptcy and Equity Limitation | Section 3.1(c) |
Cash Purchase Price | Recitals |
Chosen Courts | Section 4.6 |
Company | Recitals |
Effective Date | Section 2.2 |
Indemnified Parties | Section 4.10(c) |
Indemnifying Party | Section 4.10(c) |
Managing Member | Recitals |
Note Purchase Price | Recitals |
Purchase Price | Recitals |
Purchaser | Preamble |
Seller | Preamble |
Transfer | Recitals |
Transferred Interests | Recitals |
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Section 1.3 Headings. The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Section 1.4 Construction. Unless the context otherwise requires, as used in this Agreement: (i) “or” is not exclusive; (ii) “including” and its variants mean “including, without limitation” and its variants; (iii) words defined in the singular have the parallel meaning in the plural and vice versa; (iv) references to “written” or “in writing” include in visual electronic form; (v) words of one gender shall be construed to apply to each gender; (vi) the term “Section” refers to the specified Section of this Agreement; (vii) the terms “Dollars” and “$” mean United States Dollars; and (viii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”.
Article
II
THE TRANSFER
Section 2.1 The Transfer. On the terms and subject to the conditions set forth herein, Seller hereby sells, assigns and transfers to Purchaser, and Purchaser hereby purchases, acquires and assumes from Seller, all of Seller’s right, title and interest in and to the Transferred Interests, including from and after the Effective Date (as defined below) all allocations of profits and losses and distributions of cash or other property, in respect of the Transferred Interests, all future payment and legal obligations in respect of the Transferred Interests and all other rights and obligations otherwise accruing to Seller by virtue of owning the Transferred Interests, in exchange for the Purchase Price. Seller shall pay the Cash Purchase Price to Seller by wire transfer of immediately available funds on the Effective Date to such account or accounts as shall be designated by Seller in writing to Purchaser prior to the Effective Date.
Section 2.2 Effective Date. This Agreement, and the Transfer of the Transferred Interests, shall be effective as of the date hereof (the “Effective Date”).
Section 2.3 Managing Member Approval. Managing Member hereby acknowledges and consents to the Transfer of the Transferred Interests in all respects for all purposes under the LLC Agreement and any other applicable agreements.
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Article
III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Seller. Seller represents and warrants to Purchaser:
(a) Organization. Seller is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Seller has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
(b) Power and Authority. Seller has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Seller and constitutes its valid and binding obligation, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting generally the enforcement of creditors’ interests and (ii) the availability of equitable remedies (whether in a Proceeding in equity or at Law) (collectively, the “Bankruptcy and Equity Limitation”).
(d) Ownership of Transferred Interests. Seller owns 100% of all right, title and interest in and to the Transferred Interests, and has not heretofore assigned, pledged or otherwise hypothecated the Transferred Interests.
(e) No Conflict. The execution and delivery of this Agreement and the performance by Seller of its obligations hereunder and compliance by Seller with all of the provisions hereof and the consummation of the Transfer (i) shall not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract with a third party to which Seller is a party (excluding the LLC Agreement), (ii) shall not result in any violation or breach of any provisions of the organizational documents of Seller and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any Law, statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over Seller or Seller’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Seller to consummate the Transfer.
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(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Seller, threatened against Seller which, individually or in the aggregate, if determined adversely to a Seller, would materially and adversely affect the ability of such Seller to perform its obligations under this Agreement.
(g) Confidential Information. Seller understands that Purchaser may be in possession of material non-public information and other confidential information relating to the Transferred Interests, the securities held by the Company (including information with respect to each of General Growth Properties, Inc. and Rouse Properties, Inc. and, in particular, preliminary quarterly earnings results for such Persons for the first quarter of 2013) and the Company that has not been communicated to Seller. Seller acknowledges that Purchaser has stated that it is a long-term holder of securities of General Growth Properties, Inc. and Rouse Properties, Inc. and holds a favorable long-term view of the business prospects of such issuers. Seller acknowledges that it is proceeding with the sale of the Seller’s Transferred Interests to Purchaser knowingly and voluntarily, without access to or the benefit of such information. Seller hereby waives any right to rescind or invalidate the sale of the Transferred Interests to Purchaser or to seek any damages or remuneration from Purchaser based on the possession of any information regarding the Company by Purchaser or the lack of possession of any information regarding the Company by Seller. Seller agrees that Purchaser shall not have any obligation to disclose any such information to Seller.
(h) Sophisticated Investor. Seller is a sophisticated investor and has such knowledge and experience in financial and business matters and in making investments of this type that it is capable of evaluating, negotiating and implementing the transactions contemplated hereby, including the Transfer.
(i) No Other Representations or Warranties. Except for the representations and warranties made by the Seller in this Section 3.1, neither Seller nor any other Person on behalf of Seller makes any representation or warranty with respect to Seller or any of its assets, liabilities, condition (financial or otherwise) or prospects or with respect to the LLC Agreement.
(j) Acknowledgement. Seller acknowledges that (i) no Purchaser nor any Person on behalf of Purchaser is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Purchaser in Section 3.2 and (ii) Seller has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.2.
Section 3.2 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller:
(a) Organization. Purchaser is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Purchaser has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
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(b) Power and Authority. Purchaser has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Purchaser and constitutes its valid and binding obligation, enforceable against Purchaser in accordance with its terms, subject to the Bankruptcy and Equity Limitation.
(d) No Conflict. Neither the consummation of the Transfer by Purchaser and Seller, the execution and delivery of this Agreement, the performance by Purchaser of its obligations hereunder nor the compliance by Purchaser with all of the provisions hereof (i) shall conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract to which Purchaser is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of Purchaser and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over Purchaser or Purchaser’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Purchaser to consummate the Transfer.
(e) Consents and Approvals. No consent, approval, Order, authorization, registration or qualification of or with any Governmental Entity having jurisdiction over Purchaser is required in connection with the execution and delivery by Purchaser of this Agreement or the consummation of the Transfer, except such consents, approvals, Orders, authorizations, registration or qualification as would not reasonably be expected to materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Purchaser, threatened against Purchaser which, individually or in the aggregate, if determined adversely to Purchaser, would materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(g) No Broker’s Fees. Purchaser is not party to any contract, agreement or understanding with any Person that would give rise to a valid claim against Seller for an investment banking fee, commission, finder’s fee or like payment in connection with the Transfer.
(h) No Other Representations or Warranties. Except for the representations and warranties made by Purchaser in this Section 3.2, neither Purchaser nor any other Person on behalf of Purchaser makes any representation or warranty with respect to Purchaser or its respective assets, liabilities, condition (financial or otherwise) or prospects.
(i) Acknowledgement. Purchaser acknowledges that (i) neither Seller nor any Person on behalf of Seller is making any representations or warranties whatsoever, express or implied, beyond those expressly given by Seller in Section 3.1 of this Agreement and (ii) Purchaser has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.1 of this Agreement.
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Article
IV
MISCELLANEOUS
Section 4.1 Further Assurances. The parties agree to use commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, such further instruments or documents or take such other action as may be reasonably necessary (or as reasonably requested by another party) to consummate the Transfer.
Section 4.2 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be considered given if given in the manner, and be deemed given at times, as follows: (x) on the date delivered, if personally delivered; (y) on the day of transmission if sent via facsimile transmission to the facsimile number given below, and telephonic confirmation of receipt is obtained promptly after completion of transmission; or (z) on the next Business Day after being sent by recognized overnight mail service specifying next business day delivery, in each case with delivery charges pre-paid and addressed to the following addresses:
(a) If to Seller to:
c/o Barclays Private Bank & Trust (Cayman) Limited
4th Floor First Caribbean House
P.O. Box 487
Grand Cayman
Cayman Island KY1-1106
Attention: Angie Yee
Facsimile: (345) 949-9056
with a copy (which shall not constitute notice) to:
Kemnay Advisory Services Inc.
45 Rockefeller Plaza, Suite 2100
New York, NY 10111
Attention: Andrew Rothschild, Avi Sharoni, Robert Kirby &
Kevin Mitchell
Fax: (212) 218-6971
(b) If to Purchaser to:
Brookfield Place, Suite 300
181 Bay Street, P.O. Box 762
Toronto, Onterio M5J 2T3
Attention: Joseph S. Freedman
Facsimile: (416) 363-9491
E-mail: joe.freedman@brookfield.com
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with a copy (which shall not constitute notice) to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Gregory B. Astrachan
Facsimile: (212) 728-8111
Section 4.3 Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned by any party without the prior written consent of each other party. This Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any person other than the parties hereto any rights or remedies under this Agreement.
Section 4.4 Survival. The parties agree that the covenants, agreements, acknowledgements, representations and warranties made by each of them in this Agreement, and any certificate or instrument delivered pursuant hereto, shall survive until six months after the expiration of the applicable statute of limitations, giving effect to any extensions thereof; it being understood that in the event notice of any claims for indemnification under Section 4.10(c) have been given within the applicable survival period, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved.
Section 4.5 Prior Negotiations; Entire Agreement. This Agreement (including the exhibits hereto and the documents and instruments referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all prior agreements, arrangements or understandings, whether written or oral, between the parties with respect to the subject matter of this Agreement.
Section 4.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each party hereto agrees that it shall bring any Proceeding in respect of any claim arising out of or related to this Agreement or the Transfer exclusively in the courts of the State of New York and the Federal courts of the United States, in each case, located in the County of New York (the “Chosen Courts”). Solely in connection with claims arising under this Agreement or the Transfer, each party hereto (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such Proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 4.1 of this Agreement. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION.
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Section 4.7 Counterparts. This Agreement may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other party (including via facsimile or other electronic transmission), it being understood that each party need not sign the same counterpart.
Section 4.8 Expenses. Each party shall bear its own expenses incurred or to be incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the Transfer.
Section 4.9 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof, nor shall any waiver of the part of any party of any right, power or privilege pursuant to this Agreement, nor shall any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any party otherwise may have at Law or in equity.
Section 4.10 Certain Remedies.
(a) Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or of any other agreement between them with respect to the Transfer were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other applicable remedies at Law or equity, the parties shall be entitled to an injunction or injunctions, without proof of damages, to prevent breaches of this Agreement or of any other agreement between them with respect to the Transfer and to enforce specifically the terms and provisions of this Agreement.
(b) No Consequential Damages. To the fullest extent permitted by applicable Law, the parties shall not assert, and hereby waive, any claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor, against any other party and its respective Affiliates, members, members’ affiliates, officers, directors, partners, trustees, employees, attorneys and agents on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on Contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, or as a result of, this Agreement or of any other agreement between them with respect to the Transfer.
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(c) Indemnification. Without prejudice to any other remedies available at law or equity, each party (the “Indemnifying Party”) hereby agrees that it shall indemnify, defend and hold harmless the other party, its Affiliates and, if applicable, their respective directors, officers and employees (the “Indemnified Parties”) from, against and in respect of any damages, claims, losses, charges, actions, suits, penalties and reasonable costs and expenses (including reasonable attorney’s fees and expenses in connection with any investigations or defense of any claim) imposed on, sustained, incurred or suffered by or asserted against any of the Indemnified Parties relating to or arising out of (i) any breach of any representation or warranty made by the Indemnifying Party or its Affiliates contained in this Agreement or (ii) the breach of any covenant or agreement of the Indemnifying Party or its Affiliates contained in this Agreement. The parties agree to treat any amounts payable pursuant to this Section 4.10(c) as adjustments to the purchase price paid for the Transferred Interests for all purposes, except to the extent any applicable Law otherwise requires.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year first above written.
SELLER: | VFF Investments III LLC, a Delaware Limited Liability Company | |||
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By: | /s/ Angie Yee - Lois A. Jeffers | |||
Name: Angie Yee - Lois A. Jeffers | ||||
Title: Authorized Signatories | ||||
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PURCHASER: | Brookfield Asset Management Inc., an Ontario Corporation | |||
By: | /s/ Aleks Novakovic | |||
Name: Aleks Novakovic | ||||
Title: Manager
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CONSENT AND ACKNOWLEDGEMENT
OF MANAGING MEMBER AND GENERAL PARTNER:
Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P.,
A Manitoba limited partnership
By: Brookfield Private Funds Holdings Inc.,
its general partner
By: /s/ Aleks Novakovic
Name: Aleks Novakovic
Title: Director
By: /s/ Arin Jonathan Silber
Name: Arin Jonathan Silber
Title: Director
EXHIBIT 27
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”), dated as of April 12, 2013, is entered into by and between Brookfield Asset Management Inc., an Ontario corporation (“Purchaser”), and David Tepper, an individual (“Seller”).
RECITALS
WHEREAS, Seller owns Class A Interests (as such term is defined in the LLC Agreement (as defined below)) of Brookfield Retail Holdings IV-C Sub LLC, a Delaware limited liability company (the “Company”) representing 39.599216% of the Company Percentage Interest (as such term is defined in the LLC Agreement) of the Company;
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and Purchaser desires to purchase, acquire and assume from Seller (the “Transfer”), one-third (1/3) of the Class A Interests owned by Seller (the “Transferred Interests”) in exchange for an aggregate purchase price of $12,530,284.27 in cash (the “Purchase Price”);
WHEREAS, Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P., a Manitoba limited partnership (the “Managing Member”), is the managing member of the Company, and, by execution of this Agreement, desires to approve this Transfer as required under Article 10 of the LLC Agreement; and
WHEREAS, the parties hereto desire to document the Transfer of the Transferred Interests from Seller to Purchaser, in accordance with and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, each of which is made a part hereof, and the mutual promises, covenants and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Article
I
CERTAIN DEFINITIONS AND CONSTRUCTION
Section 1.1 Certain Definitions. As used in this Agreement, the following terms have the meanings set forth below:
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, Contract or otherwise.
“Business Day” means any day, other than a Saturday or Sunday, on which commercial banks are not required or authorized to close in New York, New York or Chicago, Illinois.
“Contract” means any agreement, obligation, contract, license, understanding, commitment, indenture or instrument, whether written or oral.
“Encumbrance” means any lien, pledge, charge, encumbrance, security interest, option, mortgage, easement, restriction (including restrictive covenants or deed restrictions in connection with environmental or remedial obligations), lease, sublease, right of way, right of refusal or offer, claim, restriction on transfer, restriction on voting or other similar restriction, including any voting agreement or proxy.
“Governmental Entity” means any federal, state, local or foreign government or any court, administrative body, agency or commission or other governmental or quasi-governmental entity, authority or instrumentality, domestic or foreign, with competent jurisdiction.
“Law” means any law, statute, ordinance, rule, regulation, directive, code or Order enacted, issued, promulgated, enforced or entered by any Governmental Entity.
“LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement (as amended to date) of Brookfield Retail Holdings IV-C LLC (f/k/a Brookfield REP Investments IV-C LLC, a Delaware limited liability company) dated as of October 25, 2010.
“Person” means an individual, a corporation, a general or limited partnership, an association, a limited liability company, a Governmental Entity, a trust or other entity or organization.
“Proceeding” means any suit, action, proceeding, arbitration, mediation, audit, hearing, inquiry or, to the knowledge of the Person in question, investigation (in each case, whether civil, criminal, administrative, investigative, formal or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity.
Section 1.2 Additional Definitions.
Agreement | Preamble |
Bankruptcy and Equity Limitation | Section 3.1(c) |
Chosen Courts | Section 4.6 |
Company | Recitals |
Effective Date | Section 2.2 |
Indemnified Parties | Section 4.10(c) |
Indemnifying Party | Section 4.10(c) |
Managing Member | Recitals |
Purchase Price | Recitals |
Purchaser | Preamble |
Seller | Preamble |
Transfer | Recitals |
Transferred Interests | Recitals |
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Section 1.3 Headings. The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Section 1.4 Construction. Unless the context otherwise requires, as used in this Agreement: (i) “or” is not exclusive; (ii) “including” and its variants mean “including, without limitation” and its variants; (iii) words defined in the singular have the parallel meaning in the plural and vice versa; (iv) references to “written” or “in writing” include in visual electronic form; (v) words of one gender shall be construed to apply to each gender; (vi) the term “Section” refers to the specified Section of this Agreement; (vii) the terms “Dollars” and “$” mean United States Dollars; and (viii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”.
Article
II
THE TRANSFER
Section 2.1 The Transfer. On the terms and subject to the conditions set forth herein, Seller hereby sells, assigns and transfers to Purchaser, and Purchaser hereby purchases, acquires and assumes from Seller, all of Seller’s right, title and interest in and to the Transferred Interests, including from and after the Effective Date (as defined below) all allocations of profits and losses and distributions of cash or other property, in respect of the Transferred Interests, all future payment and legal obligations in respect of the Transferred Interests and all other rights and obligations otherwise accruing to Seller by virtue of owning the Transferred Interests, in exchange for the Purchase Price.
Section 2.2 Effective Date. This Agreement, and the Transfer of the Transferred Interests, shall be effective as of the date hereof (the “Effective Date”).
Section 2.3 Managing Member Approval. Managing Member hereby acknowledges and consents to the Transfer of the Transferred Interests in all respects for all purposes under the LLC Agreement and any other applicable agreements.
Article
III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Seller. Seller represents and warrants to Purchaser:
(a) Organization. Seller is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Seller has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
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(b) Power and Authority. Seller has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Seller and constitutes its valid and binding obligation, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting generally the enforcement of creditors’ interests and (ii) the availability of equitable remedies (whether in a Proceeding in equity or at Law) (collectively, the “Bankruptcy and Equity Limitation”).
(d) Ownership of Transferred Interests. Seller owns 100% of all right, title and interest in and to the Transferred Interests, and has not heretofore assigned, pledged or otherwise hypothecated the Transferred Interests.
(e) No Conflict. The execution and delivery of this Agreement and the performance by Seller of its obligations hereunder and compliance by Seller with all of the provisions hereof and the consummation of the Transfer (i) shall not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract with a third party to which Seller is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of Seller and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any Law, statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over Seller or Seller’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Seller to consummate the Transfer.
(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Seller, threatened against Seller which, individually or in the aggregate, if determined adversely to a Seller, would materially and adversely affect the ability of such Seller to perform its obligations under this Agreement.
(g) Confidential Information. Seller understands that Purchaser may be in possession of material non-public information and other confidential information relating to the Transferred Interests, the securities held by the Company (including information with respect to each of General Growth Properties, Inc. and Rouse Properties, Inc. and, in particular, preliminary quarterly earnings results for such Persons for the first quarter of 2013) and the Company that has not been communicated to Seller. Seller acknowledges that Purchaser has stated that it is a long-term holder of securities of General Growth Properties, Inc. and Rouse Properties, Inc. and holds a favorable long-term view of the business prospects of such issuers. Seller acknowledges that it is proceeding with the sale of the Seller’s Transferred Interests to Purchaser knowingly and voluntarily, without access to or the benefit of such information. Seller hereby waives any right to rescind or invalidate the sale of the Transferred Interests to Purchaser or to seek any damages or remuneration from Purchaser based on the possession of any information regarding the Company by Purchaser or the lack of possession of any information regarding the Company by Seller. Seller agrees that Purchaser shall not have any obligation to disclose any such information to Seller.
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(h) Sophisticated Investor. Seller is a sophisticated investor and has such knowledge and experience in financial and business matters and in making investments of this type that it is capable of evaluating, negotiating and implementing the transactions contemplated hereby, including the Transfer.
(i) No Other Representations or Warranties. Except for the representations and warranties made by the Seller in this Section 3.1, neither Seller nor any other Person on behalf of Seller makes any representation or warranty with respect to Seller or any of its assets, liabilities, condition (financial or otherwise) or prospects.
(j) Acknowledgement. Seller acknowledges that (i) no Purchaser nor any Person on behalf of Purchaser is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Purchaser in Section 3.2 and (ii) Seller has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.2.
Section 3.2 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller:
(a) Organization. Purchaser is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Purchaser has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
(b) Power and Authority. Purchaser has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Purchaser and constitutes its valid and binding obligation, enforceable against Purchaser in accordance with its terms, subject to the Bankruptcy and Equity Limitation.
(d) No Conflict. Neither the consummation of the Transfer by Purchaser and Seller, the execution and delivery of this Agreement, the performance by Purchaser of its obligations hereunder nor the compliance by Purchaser with all of the provisions hereof (i) shall conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract to which Purchaser is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of Purchaser and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over Purchaser or Purchaser’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Purchaser to consummate the Transfer.
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(e) Consents and Approvals. No consent, approval, Order, authorization, registration or qualification of or with any Governmental Entity having jurisdiction over Purchaser is required in connection with the execution and delivery by Purchaser of this Agreement or the consummation of the Transfer, except such consents, approvals, Orders, authorizations, registration or qualification as would not reasonably be expected to materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Purchaser, threatened against Purchaser which, individually or in the aggregate, if determined adversely to Purchaser, would materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(g) No Broker’s Fees. Purchaser is not party to any contract, agreement or understanding with any Person that would give rise to a valid claim against Seller for an investment banking fee, commission, finder’s fee or like payment in connection with the Transfer.
(h) No Other Representations or Warranties. Except for the representations and warranties made by Purchaser in this Section 3.2, neither Purchaser nor any other Person on behalf of Purchaser makes any representation or warranty with respect to Purchaser or its respective assets, liabilities, condition (financial or otherwise) or prospects.
(i) Acknowledgement. Purchaser acknowledges that (i) neither Seller nor any Person on behalf of Seller is making any representations or warranties whatsoever, express or implied, beyond those expressly given by Seller in Section 3.1 of this Agreement and (ii) Purchaser has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.1 of this Agreement.
Article
IV
MISCELLANEOUS
Section 4.1 Further Assurances. The parties agree to use commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, such further instruments or documents or take such other action as may be reasonably necessary (or as reasonably requested by another party) to consummate the Transfer.
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Section 4.2 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be considered given if given in the manner, and be deemed given at times, as follows: (x) on the date delivered, if personally delivered; (y) on the day of transmission if sent via facsimile transmission to the facsimile number given below, and telephonic confirmation of receipt is obtained promptly after completion of transmission; or (z) on the next Business Day after being sent by recognized overnight mail service specifying next business day delivery, in each case with delivery charges pre-paid and addressed to the following addresses:
(a) If to Seller to:
Appaloosa Management, L.P.
51 John F. Kennedy Pkwy.
Short Hills, NJ, 07078
Attention: Larry Rogers
Facsimile: (973) 701-7000
E-mail: l.rogers@amlp.com
(b) If to Purchaser to:
Brookfield Place, Suite 300
181 Bay Street, P.O. Box 762
Toronto, Onterio M5J 2T3
Attention: Joseph S. Freedman
Facsimile: (416) 363-9491
E-mail: joe.freedman@brookfield.com
with a copy (which shall not constitute notice) to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Gregory B. Astrachan
Facsimile: (212) 728-8111
Section 4.3 Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned by any party without the prior written consent of each other party. This Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any person other than the parties hereto any rights or remedies under this Agreement.
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Section 4.4 Survival. The parties agree that the covenants, agreements, acknowledgements, representations and warranties made by each of them in this Agreement, and any certificate or instrument delivered pursuant hereto, shall survive until six months after the expiration of the applicable statute of limitations, giving effect to any extensions thereof; it being understood that in the event notice of any claims for indemnification under Section 4.10(c) have been given within the applicable survival period, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved.
Section 4.5 Prior Negotiations; Entire Agreement. This Agreement (including the exhibits hereto and the documents and instruments referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all prior agreements, arrangements or understandings, whether written or oral, between the parties with respect to the subject matter of this Agreement.
Section 4.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each party hereto agrees that it shall bring any Proceeding in respect of any claim arising out of or related to this Agreement or the Transfer exclusively in the courts of the State of New York and the Federal courts of the United States, in each case, located in the County of New York (the “Chosen Courts”). Solely in connection with claims arising under this Agreement or the Transfer, each party hereto (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such Proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 4.2 of this Agreement. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION.
Section 4.7 Counterparts. This Agreement may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other party (including via facsimile or other electronic transmission), it being understood that each party need not sign the same counterpart.
Section 4.8 Expenses. Each party shall bear its own expenses incurred or to be incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the Transfer.
Section 4.9 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof, nor shall any waiver of the part of any party of any right, power or privilege pursuant to this Agreement, nor shall any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any party otherwise may have at Law or in equity.
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Section 4.10 Certain Remedies.
(a) Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or of any other agreement between them with respect to the Transfer were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other applicable remedies at Law or equity, the parties shall be entitled to an injunction or injunctions, without proof of damages, to prevent breaches of this Agreement or of any other agreement between them with respect to the Transfer and to enforce specifically the terms and provisions of this Agreement.
(b) No Consequential Damages. To the fullest extent permitted by applicable Law, the parties shall not assert, and hereby waive, any claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor, against any other party and its respective Affiliates, members, members’ affiliates, officers, directors, partners, trustees, employees, attorneys and agents on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on Contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, or as a result of, this Agreement or of any other agreement between them with respect to the Transfer.
(c) Indemnification. Without prejudice to any other remedies available at law or equity, each party (the “Indemnifying Party”) hereby agrees that it shall indemnify, defend and hold harmless the other party, its Affiliates and, if applicable, their respective directors, officers and employees (the “Indemnified Parties”) from, against and in respect of any damages, claims, losses, charges, actions, suits, penalties and reasonable costs and expenses (including reasonable attorney’s fees and expenses in connection with any investigations or defense of any claim) imposed on, sustained, incurred or suffered by or asserted against any of the Indemnified Parties relating to or arising out of (i) any breach of any representation or warranty made by the Indemnifying Party or its Affiliates contained in this Agreement or (ii) the breach of any covenant or agreement of the Indemnifying Party or its Affiliates contained in this Agreement. The parties agree to treat any amounts payable pursuant to this Section 4.10(c) as adjustments to the purchase price paid for the Transferred Interests for all purposes, except to the extent any applicable Law otherwise requires.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year first above written.
SELLER: | David Tepper | |||
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By: | /s/ David Tepper | |||
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PURCHASER: | Brookfield Asset Management Inc., an Ontario Corporation | |||
By: | /s/ Aleks Novakovic | |||
Name: Aleks Novakovic | ||||
Title: Director
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CONSENT AND ACKNOWLEDGEMENT
OF MANAGING MEMBER:
Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P.,
A Manitoba limited partnership
By: Brookfield Private Funds Holdings Inc.,
its general partner
By: /s/ Arin Jonathan Silber
Name: Arin Jonathan Silber
Title: Director
By: /s/ Aleks Novakovic
Name: Aleks Novakovic
Title: Director
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MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”), dated as of April 12, 2013, is entered into by and between Brookfield Asset Management Inc., an Ontario corporation (“Purchaser”), and Tepper Family 2012 Irrevocable Trust A (“Seller”).
RECITALS
WHEREAS, Seller owns Class A Interests (as such term is defined in the LLC Agreement (as defined below)) of Brookfield Retail Holdings IV-C Sub LLC, a Delaware limited liability company (the “Company”) representing 49.499091% of the Company Percentage Interest (as such term is defined in the LLC Agreement) of the Company;
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and Purchaser desires to purchase, acquire and assume from Seller (the “Transfer”), one third (1/3) of the Class A Interests owned by Seller (the “Transferred Interests”) in exchange for an aggregate purchase price of $15,662,855.33 in cash (the “Purchase Price”);
WHEREAS, Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P., a Manitoba limited partnership (the “Managing Member”), is the managing member of the Company, and, by execution of this Agreement, desires to approve this Transfer as required under Article 10 of the LLC Agreement; and
WHEREAS, the parties hereto desire to document the Transfer of the Transferred Interests from Seller to Purchaser, in accordance with and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, each of which is made a part hereof, and the mutual promises, covenants and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Article
I
CERTAIN DEFINITIONS AND CONSTRUCTION
Section 1.1 Certain Definitions. As used in this Agreement, the following terms have the meanings set forth below:
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, Contract or otherwise.
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“Business Day” means any day, other than a Saturday or Sunday, on which commercial banks are not required or authorized to close in New York, New York or Chicago, Illinois.
“Contract” means any agreement, obligation, contract, license, understanding, commitment, indenture or instrument, whether written or oral.
“Encumbrance” means any lien, pledge, charge, encumbrance, security interest, option, mortgage, easement, restriction (including restrictive covenants or deed restrictions in connection with environmental or remedial obligations), lease, sublease, right of way, right of refusal or offer, claim, restriction on transfer, restriction on voting or other similar restriction, including any voting agreement or proxy.
“Governmental Entity” means any federal, state, local or foreign government or any court, administrative body, agency or commission or other governmental or quasi-governmental entity, authority or instrumentality, domestic or foreign, with competent jurisdiction.
“Law” means any law, statute, ordinance, rule, regulation, directive, code or Order enacted, issued, promulgated, enforced or entered by any Governmental Entity.
“LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement (as amended to date) of Brookfield Retail Holdings IV-C LLC (f/k/a Brookfield REP Investments IV-C LLC, a Delaware limited liability company) dated as of October 25, 2010.
“Person” means an individual, a corporation, a general or limited partnership, an association, a limited liability company, a Governmental Entity, a trust or other entity or organization.
“Proceeding” means any suit, action, proceeding, arbitration, mediation, audit, hearing, inquiry or, to the knowledge of the Person in question, investigation (in each case, whether civil, criminal, administrative, investigative, formal or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity.
Section 1.2 Additional Definitions.
Agreement | Preamble |
Bankruptcy and Equity Limitation | Section 3.1(c) |
Chosen Courts | Section 4.6 |
Company | Recitals |
Effective Date | Section 2.2 |
Indemnified Parties | Section 4.10(c) |
Indemnifying Party | Section 4.10(c) |
Managing Member | Recitals |
Purchase Price | Recitals |
Purchaser | Preamble |
Seller | Preamble |
Transfer | Recitals |
Transferred Interests | Recitals |
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Section 1.3 Headings. The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Section 1.4 Construction. Unless the context otherwise requires, as used in this Agreement: (i) “or” is not exclusive; (ii) “including” and its variants mean “including, without limitation” and its variants; (iii) words defined in the singular have the parallel meaning in the plural and vice versa; (iv) references to “written” or “in writing” include in visual electronic form; (v) words of one gender shall be construed to apply to each gender; (vi) the term “Section” refers to the specified Section of this Agreement; (vii) the terms “Dollars” and “$” mean United States Dollars; and (viii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”.
Article
II
THE TRANSFER
Section 2.1 The Transfer. On the terms and subject to the conditions set forth herein, Seller hereby sells, assigns and transfers to Purchaser, and Purchaser hereby purchases, acquires and assumes from Seller, all of Seller’s right, title and interest in and to the Transferred Interests, including from and after the Effective Date (as defined below) all allocations of profits and losses and distributions of cash or other property, in respect of the Transferred Interests, all future payment and legal obligations in respect of the Transferred Interests and all other rights and obligations otherwise accruing to Seller by virtue of owning the Transferred Interests, in exchange for the Purchase Price.
Section 2.2 Effective Date. This Agreement, and the Transfer of the Transferred Interests, shall be effective as of the date hereof (the “Effective Date”).
Section 2.3 Managing Member Approval. Managing Member hereby acknowledges and consents to the Transfer of the Transferred Interests in all respects for all purposes under the LLC Agreement and any other applicable agreements.
Article
III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Seller. Seller represents and warrants to Purchaser:
(a) Organization. Seller is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Seller has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
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(b) Power and Authority. Seller has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Seller and constitutes its valid and binding obligation, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting generally the enforcement of creditors’ interests and (ii) the availability of equitable remedies (whether in a Proceeding in equity or at Law) (collectively, the “Bankruptcy and Equity Limitation”).
(d) Ownership of Transferred Interests. Seller owns 100% of all right, title and interest in and to the Transferred Interests, and has not heretofore assigned, pledged or otherwise hypothecated the Transferred Interests.
(e) No Conflict. The execution and delivery of this Agreement and the performance by Seller of its obligations hereunder and compliance by Seller with all of the provisions hereof and the consummation of the Transfer (i) shall not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract with a third party to which Seller is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of Seller and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any Law, statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over Seller or Seller’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Seller to consummate the Transfer.
(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Seller, threatened against Seller which, individually or in the aggregate, if determined adversely to a Seller, would materially and adversely affect the ability of such Seller to perform its obligations under this Agreement.
(g) Confidential Information. Seller understands that Purchaser may be in possession of material non-public information and other confidential information relating to the Transferred Interests, the securities held by the Company (including information with respect to each of General Growth Properties, Inc. and Rouse Properties, Inc. and, in particular, preliminary quarterly earnings results for such Persons for the first quarter of 2013) and the Company that has not been communicated to Seller. Seller acknowledges that Purchaser has stated that it is a long-term holder of securities of General Growth Properties, Inc. and Rouse Properties, Inc. and holds a favorable long-term view of the business prospects of such issuers. Seller acknowledges that it is proceeding with the sale of the Seller’s Transferred Interests to Purchaser knowingly and voluntarily, without access to or the benefit of such information. Seller hereby waives any right to rescind or invalidate the sale of the Transferred Interests to Purchaser or to seek any damages or remuneration from Purchaser based on the possession of any information regarding the Company by Purchaser or the lack of possession of any information regarding the Company by Seller. Seller agrees that Purchaser shall not have any obligation to disclose any such information to Seller.
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(h) Sophisticated Investor. Seller is a sophisticated investor and has such knowledge and experience in financial and business matters and in making investments of this type that it is capable of evaluating, negotiating and implementing the transactions contemplated hereby, including the Transfer.
(i) No Other Representations or Warranties. Except for the representations and warranties made by the Seller in this Section 3.1, neither Seller nor any other Person on behalf of Seller makes any representation or warranty with respect to Seller or any of its assets, liabilities, condition (financial or otherwise) or prospects.
(j) Acknowledgement. Seller acknowledges that (i) no Purchaser nor any Person on behalf of Purchaser is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Purchaser in Section 3.2 and (ii) Seller has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.2.
Section 3.2 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller:
(a) Organization. Purchaser is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Purchaser has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
(b) Power and Authority. Purchaser has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Purchaser and constitutes its valid and binding obligation, enforceable against Purchaser in accordance with its terms, subject to the Bankruptcy and Equity Limitation.
(d) No Conflict. Neither the consummation of the Transfer by Purchaser and Seller, the execution and delivery of this Agreement, the performance by Purchaser of its obligations hereunder nor the compliance by Purchaser with all of the provisions hereof (i) shall conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract to which Purchaser is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of Purchaser and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over Purchaser or Purchaser’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Purchaser to consummate the Transfer.
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(e) Consents and Approvals. No consent, approval, Order, authorization, registration or qualification of or with any Governmental Entity having jurisdiction over Purchaser is required in connection with the execution and delivery by Purchaser of this Agreement or the consummation of the Transfer, except such consents, approvals, Orders, authorizations, registration or qualification as would not reasonably be expected to materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Purchaser, threatened against Purchaser which, individually or in the aggregate, if determined adversely to Purchaser, would materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(g) No Broker’s Fees. Purchaser is not party to any contract, agreement or understanding with any Person that would give rise to a valid claim against Seller for an investment banking fee, commission, finder’s fee or like payment in connection with the Transfer.
(h) No Other Representations or Warranties. Except for the representations and warranties made by Purchaser in this Section 3.2, neither Purchaser nor any other Person on behalf of Purchaser makes any representation or warranty with respect to Purchaser or its respective assets, liabilities, condition (financial or otherwise) or prospects.
(i) Acknowledgement. Purchaser acknowledges that (i) neither Seller nor any Person on behalf of Seller is making any representations or warranties whatsoever, express or implied, beyond those expressly given by Seller in Section 3.1 of this Agreement and (ii) Purchaser has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.1 of this Agreement.
Article
IV
MISCELLANEOUS
Section 4.1 Further Assurances. The parties agree to use commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, such further instruments or documents or take such other action as may be reasonably necessary (or as reasonably requested by another party) to consummate the Transfer.
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Section 4.2 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be considered given if given in the manner, and be deemed given at times, as follows: (x) on the date delivered, if personally delivered; (y) on the day of transmission if sent via facsimile transmission to the facsimile number given below, and telephonic confirmation of receipt is obtained promptly after completion of transmission; or (z) on the next Business Day after being sent by recognized overnight mail service specifying next business day delivery, in each case with delivery charges pre-paid and addressed to the following addresses:
Appaloosa Management, L.P.
51 John F. Kennedy Pkwy.
Short Hills, NJ, 07078
Attention: Larry Rogers
Facsimile: (973) 701-7000
E-mail: l.rogers@amlp.com
(a) If to Purchaser to:
Brookfield Place, Suite 300
181 Bay Street, P.O. Box 762
Toronto, Onterio M5J 2T3
Attention: Joseph S. Freedman
Facsimile: (416) 363-9491
E-mail: joe.freedman@brookfield.com
with a copy (which shall not constitute notice) to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Gregory B. Astrachan
Facsimile: (212) 728-8111
Section 4.3 Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned by any party without the prior written consent of each other party. This Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any person other than the parties hereto any rights or remedies under this Agreement.
Section 4.4 Survival. The parties agree that the covenants, agreements, acknowledgements, representations and warranties made by each of them in this Agreement, and any certificate or instrument delivered pursuant hereto, shall survive until six months after the expiration of the applicable statute of limitations, giving effect to any extensions thereof; it being understood that in the event notice of any claims for indemnification under Section 4.10(c) have been given within the applicable survival period, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved.
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Section 4.5 Prior Negotiations; Entire Agreement. This Agreement (including the exhibits hereto and the documents and instruments referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all prior agreements, arrangements or understandings, whether written or oral, between the parties with respect to the subject matter of this Agreement.
Section 4.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each party hereto agrees that it shall bring any Proceeding in respect of any claim arising out of or related to this Agreement or the Transfer exclusively in the courts of the State of New York and the Federal courts of the United States, in each case, located in the County of New York (the “Chosen Courts”). Solely in connection with claims arising under this Agreement or the Transfer, each party hereto (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such Proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 4.2 of this Agreement. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION.
Section 4.7 Counterparts. This Agreement may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other party (including via facsimile or other electronic transmission), it being understood that each party need not sign the same counterpart.
Section 4.8 Expenses. Each party shall bear its own expenses incurred or to be incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the Transfer.
Section 4.9 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof, nor shall any waiver of the part of any party of any right, power or privilege pursuant to this Agreement, nor shall any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any party otherwise may have at Law or in equity.
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Section 4.10 Certain Remedies.
(a) Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or of any other agreement between them with respect to the Transfer were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other applicable remedies at Law or equity, the parties shall be entitled to an injunction or injunctions, without proof of damages, to prevent breaches of this Agreement or of any other agreement between them with respect to the Transfer and to enforce specifically the terms and provisions of this Agreement.
(b) No Consequential Damages. To the fullest extent permitted by applicable Law, the parties shall not assert, and hereby waive, any claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor, against any other party and its respective Affiliates, members, members’ affiliates, officers, directors, partners, trustees, employees, attorneys and agents on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on Contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, or as a result of, this Agreement or of any other agreement between them with respect to the Transfer.
(c) Indemnification. Without prejudice to any other remedies available at law or equity, each party (the “Indemnifying Party”) hereby agrees that it shall indemnify, defend and hold harmless the other party, its Affiliates and, if applicable, their respective directors, officers and employees (the “Indemnified Parties”) from, against and in respect of any damages, claims, losses, charges, actions, suits, penalties and reasonable costs and expenses (including reasonable attorney’s fees and expenses in connection with any investigations or defense of any claim) imposed on, sustained, incurred or suffered by or asserted against any of the Indemnified Parties relating to or arising out of (i) any breach of any representation or warranty made by the Indemnifying Party or its Affiliates contained in this Agreement or (ii) the breach of any covenant or agreement of the Indemnifying Party or its Affiliates contained in this Agreement. The parties agree to treat any amounts payable pursuant to this Section 4.10(c) as adjustments to the purchase price paid for the Transferred Interests for all purposes, except to the extent any applicable Law otherwise requires.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year first above written.
SELLER: | Tepper Family 2012 Irrevocable Trust A | |||
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By: | /s/ Marc Kramer | |||
Name: Marc Kramer | ||||
Title: Trustee
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PURCHASER: | Brookfield Asset Management Inc., an Ontario Corporation | |||
By: | /s/ Aleks Novakovic | |||
Name: Aleks Novakovic | ||||
Title: Director
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CONSENT AND ACKNOWLEDGEMENT
OF MANAGING MEMBER:
Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P.,
A Manitoba limited partnership
By: Brookfield Private Funds Holdings Inc.,
its general partner
By: /s/ Arin Jonathan Silber
Name: Arin Jonathan Silber
Title: Director
By: /s/ Aleks Novakovic
Name: Aleks Novakovic
Title: Director
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MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”), dated as of April 12, 2013, is entered into by and between Brookfield Asset Management Inc., an Ontario corporation (“Purchaser”), and Little Dog II LLC, a New Jersey limited liability company (“Seller”).
RECITALS
WHEREAS, Seller owns Class A Interests (as such term is defined in the LLC Agreement (as defined below)) of Brookfield Retail Holdings IV-C Sub LLC, a Delaware limited liability company (the “Company”) representing 9.899804% of the Company Percentage Interest (as defined in the LLC Agreement) of the Company;
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and Purchaser desires to purchase, acquire and assume from Seller (the “Transfer”), one third (1/3) of the Class A Interests owned by Seller (the “Transferred Interests”) in exchange for an aggregate purchase price of $3,132,571.07 in cash (the “Purchase Price”);
WHEREAS, Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P., a Manitoba limited partnership (the “Managing Member”), is the managing member of the Company, and, by execution of this Agreement, desires to approve this Transfer as required under Article 10 of the LLC Agreement; and
WHEREAS, the parties hereto desire to document the Transfer of the Transferred Interests from Seller to Purchaser, in accordance with and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, each of which is made a part hereof, and the mutual promises, covenants and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Article
I
CERTAIN DEFINITIONS AND CONSTRUCTION
Section 1.1 Certain Definitions. As used in this Agreement, the following terms have the meanings set forth below:
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, Contract or otherwise.
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“Business Day” means any day, other than a Saturday or Sunday, on which commercial banks are not required or authorized to close in New York, New York or Chicago, Illinois.
“Contract” means any agreement, obligation, contract, license, understanding, commitment, indenture or instrument, whether written or oral.
“Encumbrance” means any lien, pledge, charge, encumbrance, security interest, option, mortgage, easement, restriction (including restrictive covenants or deed restrictions in connection with environmental or remedial obligations), lease, sublease, right of way, right of refusal or offer, claim, restriction on transfer, restriction on voting or other similar restriction, including any voting agreement or proxy.
“Governmental Entity” means any federal, state, local or foreign government or any court, administrative body, agency or commission or other governmental or quasi-governmental entity, authority or instrumentality, domestic or foreign, with competent jurisdiction.
“Law” means any law, statute, ordinance, rule, regulation, directive, code or Order enacted, issued, promulgated, enforced or entered by any Governmental Entity.
“LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement (as amended to date) of Brookfield Retail Holdings IV-C LLC (f/k/a Brookfield REP Investments IV-C LLC,] a Delaware limited liability company) dated as of October 25, 2010.
“Person” means an individual, a corporation, a general or limited partnership, an association, a limited liability company, a Governmental Entity, a trust or other entity or organization.
“Proceeding” means any suit, action, proceeding, arbitration, mediation, audit, hearing, inquiry or, to the knowledge of the Person in question, investigation (in each case, whether civil, criminal, administrative, investigative, formal or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity.
Section 1.2 Additional Definitions.
Agreement | Preamble |
Bankruptcy and Equity Limitation | Section 3.1(c) |
Chosen Courts | Section 4.6 |
Company | Recitals |
Effective Date | Section 2.2 |
Indemnified Parties | Section 4.10(c) |
Indemnifying Party | Section 4.10(c) |
Managing Member | Recitals |
Purchase Price | Recitals |
Purchaser | Preamble |
Seller | Preamble |
Transfer | Recitals |
Transferred Interests | Recitals |
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Section 1.3 Headings. The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Section 1.4 Construction. Unless the context otherwise requires, as used in this Agreement: (i) “or” is not exclusive; (ii) “including” and its variants mean “including, without limitation” and its variants; (iii) words defined in the singular have the parallel meaning in the plural and vice versa; (iv) references to “written” or “in writing” include in visual electronic form; (v) words of one gender shall be construed to apply to each gender; (vi) the term “Section” refers to the specified Section of this Agreement; (vii) the terms “Dollars” and “$” mean United States Dollars; and (viii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”.
Article
II
THE TRANSFER
Section 2.1 The Transfer. On the terms and subject to the conditions set forth herein, Seller hereby sells, assigns and transfers to Purchaser, and Purchaser hereby purchases, acquires and assumes from Seller, all of Seller’s right, title and interest in and to the Transferred Interests, including from and after the Effective Date (as defined below) all allocations of profits and losses and distributions of cash or other property, in respect of the Transferred Interests, all future payment and legal obligations in respect of the Transferred Interests and all other rights and obligations otherwise accruing to Seller by virtue of owning the Transferred Interests, in exchange for the Purchase Price.
Section 2.2 Effective Date. This Agreement, and the Transfer of the Transferred Interests, shall be effective as of the date hereof (the “Effective Date”).
Section 2.3 Managing Member Approval. Managing Member hereby acknowledges and consents to the Transfer of the Transferred Interests in all respects for all purposes under the LLC Agreement and any other applicable agreements.
Article
III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Seller. Seller represents and warrants to Purchaser:
(a) Organization. Seller is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Seller has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
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(b) Power and Authority. Seller has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Seller and constitutes its valid and binding obligation, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting generally the enforcement of creditors’ interests and (ii) the availability of equitable remedies (whether in a Proceeding in equity or at Law) (collectively, the “Bankruptcy and Equity Limitation”).
(d) Ownership of Transferred Interests. Seller owns 100% of all right, title and interest in and to the Transferred Interests, and has not heretofore assigned, pledged or otherwise hypothecated the Transferred Interests.
(e) No Conflict. The execution and delivery of this Agreement and the performance by Seller of its obligations hereunder and compliance by Seller with all of the provisions hereof and the consummation of the Transfer (i) shall not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract with a third party to which Seller is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of Seller and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any Law, statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over Seller or Seller’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Seller to consummate the Transfer.
(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Seller, threatened against Seller which, individually or in the aggregate, if determined adversely to a Seller, would materially and adversely affect the ability of such Seller to perform its obligations under this Agreement.
(g) Confidential Information. Seller understands that Purchaser may be in possession of material non-public information and other confidential information relating to the Transferred Interests, the securities held by the Company (including information with respect to each of General Growth Properties, Inc. and Rouse Properties, Inc. and, in particular, preliminary quarterly earnings results for such Persons for the first quarter of 2013) and the Company that has not been communicated to Seller. Seller acknowledges that Purchaser has stated that it is a long-term holder of securities of General Growth Properties, Inc. and Rouse Properties, Inc. and holds a favorable long-term view of the business prospects of such issuers. Seller acknowledges that it is proceeding with the sale of the Seller’s Transferred Interests to Purchaser knowingly and voluntarily, without access to or the benefit of such information. Seller hereby waives any right to rescind or invalidate the sale of the Transferred Interests to Purchaser or to seek any damages or remuneration from Purchaser based on the possession of any information regarding the Company by Purchaser or the lack of possession of any information regarding the Company by Seller. Seller agrees that Purchaser shall not have any obligation to disclose any such information to Seller.
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(h) Sophisticated Investor. Seller is a sophisticated investor and has such knowledge and experience in financial and business matters and in making investments of this type that it is capable of evaluating, negotiating and implementing the transactions contemplated hereby, including the Transfer.
(i) No Other Representations or Warranties. Except for the representations and warranties made by the Seller in this Section 3.1, neither Seller nor any other Person on behalf of Seller makes any representation or warranty with respect to Seller or any of its assets, liabilities, condition (financial or otherwise) or prospects.
(j) Acknowledgement. Seller acknowledges that (i) no Purchaser nor any Person on behalf of Purchaser is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Purchaser in Section 3.2 and (ii) Seller has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.2.
Section 3.2 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller:
(a) Organization. Purchaser is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Purchaser has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
(b) Power and Authority. Purchaser has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Purchaser and constitutes its valid and binding obligation, enforceable against Purchaser in accordance with its terms, subject to the Bankruptcy and Equity Limitation.
(d) No Conflict. Neither the consummation of the Transfer by Purchaser and Seller, the execution and delivery of this Agreement, the performance by Purchaser of its obligations hereunder nor the compliance by Purchaser with all of the provisions hereof (i) shall conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract to which Purchaser is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of Purchaser and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over Purchaser or Purchaser’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Purchaser to consummate the Transfer.
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(e) Consents and Approvals. No consent, approval, Order, authorization, registration or qualification of or with any Governmental Entity having jurisdiction over Purchaser is required in connection with the execution and delivery by Purchaser of this Agreement or the consummation of the Transfer, except such consents, approvals, Orders, authorizations, registration or qualification as would not reasonably be expected to materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Purchaser, threatened against Purchaser which, individually or in the aggregate, if determined adversely to Purchaser, would materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(g) No Broker’s Fees. Purchaser is not party to any contract, agreement or understanding with any Person that would give rise to a valid claim against Seller for an investment banking fee, commission, finder’s fee or like payment in connection with the Transfer.
(h) No Other Representations or Warranties. Except for the representations and warranties made by Purchaser in this Section 3.2, neither Purchaser nor any other Person on behalf of Purchaser makes any representation or warranty with respect to Purchaser or its respective assets, liabilities, condition (financial or otherwise) or prospects.
(i) Acknowledgement. Purchaser acknowledges that (i) neither Seller nor any Person on behalf of Seller is making any representations or warranties whatsoever, express or implied, beyond those expressly given by Seller in Section 3.1 of this Agreement and (ii) Purchaser has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.1 of this Agreement.
Article
IV
MISCELLANEOUS
Section 4.1 Further Assurances. The parties agree to use commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, such further instruments or documents or take such other action as may be reasonably necessary (or as reasonably requested by another party) to consummate the Transfer.
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Section 4.2 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be considered given if given in the manner, and be deemed given at times, as follows: (x) on the date delivered, if personally delivered; (y) on the day of transmission if sent via facsimile transmission to the facsimile number given below, and telephonic confirmation of receipt is obtained promptly after completion of transmission; or (z) on the next Business Day after being sent by recognized overnight mail service specifying next business day delivery, in each case with delivery charges pre-paid and addressed to the following addresses:
(a) If to Seller to:
Appaloosa Management, L.P.
51 John F. Kennedy Pkwy.
Short Hills, NJ, 07078
Attention: Larry Rogers
Facsimile: (973) 701-7000
E-mail: l.rogers@amlp.com
(b) If to Purchaser to:
Brookfield Place, Suite 300
181 Bay Street, P.O. Box 762
Toronto, Onterio M5J 2T3
Attention: Joseph S. Freedman
Facsimile: (416) 363-9491
E-mail: joe.freedman@brookfield.com
with a copy (which shall not constitute notice) to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Gregory B. Astrachan
Facsimile: (212) 728-8111
Section 4.3 Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned by any party without the prior written consent of each other party. This Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any person other than the parties hereto any rights or remedies under this Agreement.
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Section 4.4 Survival. The parties agree that the covenants, agreements, acknowledgements, representations and warranties made by each of them in this Agreement, and any certificate or instrument delivered pursuant hereto, shall survive until six months after the expiration of the applicable statute of limitations, giving effect to any extensions thereof; it being understood that in the event notice of any claims for indemnification under Section 4.10(c) have been given within the applicable survival period, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved.
Section 4.5 Prior Negotiations; Entire Agreement. This Agreement (including the exhibits hereto and the documents and instruments referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all prior agreements, arrangements or understandings, whether written or oral, between the parties with respect to the subject matter of this Agreement.
Section 4.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each party hereto agrees that it shall bring any Proceeding in respect of any claim arising out of or related to this Agreement or the Transfer exclusively in the courts of the State of New York and the Federal courts of the United States, in each case, located in the County of New York (the “Chosen Courts”). Solely in connection with claims arising under this Agreement or the Transfer, each party hereto (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such Proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 4.2 of this Agreement. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION.
Section 4.7 Counterparts. This Agreement may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other party (including via facsimile or other electronic transmission), it being understood that each party need not sign the same counterpart.
Section 4.8 Expenses. Each party shall bear its own expenses incurred or to be incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the Transfer.
Section 4.9 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof, nor shall any waiver of the part of any party of any right, power or privilege pursuant to this Agreement, nor shall any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any party otherwise may have at Law or in equity.
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Section 4.10 Certain Remedies.
(a) Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or of any other agreement between them with respect to the Transfer were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other applicable remedies at Law or equity, the parties shall be entitled to an injunction or injunctions, without proof of damages, to prevent breaches of this Agreement or of any other agreement between them with respect to the Transfer and to enforce specifically the terms and provisions of this Agreement.
(b) No Consequential Damages. To the fullest extent permitted by applicable Law, the parties shall not assert, and hereby waive, any claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor, against any other party and its respective Affiliates, members, members’ affiliates, officers, directors, partners, trustees, employees, attorneys and agents on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on Contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, or as a result of, this Agreement or of any other agreement between them with respect to the Transfer.
(c) Indemnification. Without prejudice to any other remedies available at law or equity, each party (the “Indemnifying Party”) hereby agrees that it shall indemnify, defend and hold harmless the other party, its Affiliates and, if applicable, their respective directors, officers and employees (the “Indemnified Parties”) from, against and in respect of any damages, claims, losses, charges, actions, suits, penalties and reasonable costs and expenses (including reasonable attorney’s fees and expenses in connection with any investigations or defense of any claim) imposed on, sustained, incurred or suffered by or asserted against any of the Indemnified Parties relating to or arising out of (i) any breach of any representation or warranty made by the Indemnifying Party or its Affiliates contained in this Agreement or (ii) the breach of any covenant or agreement of the Indemnifying Party or its Affiliates contained in this Agreement. The parties agree to treat any amounts payable pursuant to this Section 4.10(c) as adjustments to the purchase price paid for the Transferred Interests for all purposes, except to the extent any applicable Law otherwise requires.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year first above written.
SELLER: | Little Dog II LLC, a New Jersey limited liability company | |||
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By: | /s/ Michael J. Lukacs | |||
Name: Michael J. Lukacs | ||||
Title: Manager
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PURCHASER: | Brookfield Asset Management Inc., an Ontario Corporation | |||
By: | /s/ Aleks Novakovic | |||
Name: Aleks Novakovic | ||||
Title: Director
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CONSENT AND ACKNOWLEDGEMENT
OF MANAGING MEMBER:
Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P.,
A Manitoba limited partnership
By: Brookfield Private Funds Holdings Inc.,
its general partner
By: /s/ Arin Jonathan Silber
Name: Arin Jonathan Silber
Title: Director
By: /s/ Aleks Novakovic
Name: Aleks Novakovic
Title: Director
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EXHIBIT 28
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”), dated as of April 12, 2013, is entered into by and between Brookfield Asset Management Inc., an Ontario corporation (“Purchaser”), The Townsend Consortium Geneva Investment, LLC, a Delaware limited liability company (the “Seller”) and, for purposes of Section 2.3 only, Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P., a Manitoba limited partnership (the “Managing Member”).
RECITALS
WHEREAS, Seller owns Class A Interests (as such term is defined in the LLC Agreement (as defined below)) of Brookfield Retail Holdings IV-D LLC (f/k/a Brookfield REP Investments IV-D LLC), a Delaware limited liability company (the “Company”) representing 99.298685% of the Company Percentage Interest (as such term is defined in the LLC Agreement) of the Company;
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and Purchaser desires to purchase, acquire and assume from Seller (the “Transfer”), one third (1/3) of the Class A Interests owned by Seller (the “Transferred Interests”) in exchange for an aggregate purchase price of $31,454,089.33 million in cash (the “Purchase Price”);
WHEREAS, The Managing Member is the managing member of the Company, and, by execution of this Agreement, desires to approve this Transfer as required under Article 10 of the LLC Agreement; and
WHEREAS, the parties hereto desire to document the Transfer of the Transferred Interests from Seller to Purchaser, in accordance with and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, each of which is made a part hereof, and the mutual promises, covenants and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Article
I
CERTAIN DEFINITIONS AND CONSTRUCTION
Section 1.1 Certain Definitions. As used in this Agreement, the following terms have the meanings set forth below:
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, Contract or otherwise.
“Business Day” means any day, other than a Saturday or Sunday, on which commercial banks are not required or authorized to close in New York, New York or Chicago, Illinois.
“Contract” means any agreement, obligation, contract, license, understanding, commitment, indenture or instrument, whether written or oral.
“Encumbrance” means any lien, pledge, charge, encumbrance, security interest, option, mortgage, easement, restriction (including restrictive covenants or deed restrictions in connection with environmental or remedial obligations), lease, sublease, right of way, right of refusal or offer, claim, restriction on transfer, restriction on voting or other similar restriction, including any voting agreement or proxy.
“Governmental Entity” means any federal, state, local or foreign government or any court, administrative body, agency or commission or other governmental or quasi-governmental entity, authority or instrumentality, domestic or foreign, with competent jurisdiction.
“Law” means any law, statute, ordinance, rule, regulation, directive, code or order enacted, issued, promulgated, enforced or entered by any Governmental Entity.
“LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement (as amended to date) of Brookfield Retail Holdings IV-D LLC (f/k/a Brookfield REP Investments IV-D LLC, a Delaware limited liability company) dated as of October 25, 2010.
“Person” means an individual, a corporation, a general or limited partnership, an association, a limited liability company, a Governmental Entity, a trust or other entity or organization.
“Proceeding” means any suit, action, proceeding, arbitration, mediation, audit, hearing, inquiry or, to the knowledge of the Person in question, investigation (in each case, whether civil, criminal, administrative, investigative, formal or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity.
Section 1.2 Additional Definitions.
Agreement | Preamble |
Bankruptcy and Equity Limitation | Section 3.1(c) |
Chosen Courts | Section 4.6 |
Company | Recitals |
Effective Date | Section 2.2 |
Indemnified Parties | Section 4.10(c) |
Indemnifying Party | Section 4.10(c) |
Managing Member | Recitals |
Purchase Price | Recitals |
Purchaser | Preamble |
Seller | Preamble |
Transfer | Recitals |
Transferred Interests | Recitals |
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Section 1.3 Headings. The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Section 1.4 Construction. Unless the context otherwise requires, as used in this Agreement: (i) “or” is not exclusive; (ii) “including” and its variants mean “including, without limitation” and its variants; (iii) words defined in the singular have the parallel meaning in the plural and vice versa; (iv) references to “written” or “in writing” include in visual electronic form; (v) words of one gender shall be construed to apply to each gender; (vi) the term “Section” refers to the specified Section of this Agreement; (vii) the terms “Dollars” and “$” mean United States Dollars; and (viii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”.
Article
II
THE TRANSFER
Section 2.1 The Transfer. On the terms and subject to the conditions set forth herein, including receipt by Seller of the Purchase Price by wire transfer of immediately available funds, Seller hereby sells, assigns and transfers to Purchaser, and Purchaser hereby purchases, acquires and assumes from Seller, all of Seller’s right, title and interest in and to the Transferred Interests, including from and after the Effective Date (as defined below) all allocations of profits and losses and distributions of cash or other property, in respect of the Transferred Interests, all future payment and legal obligations in respect of the Transferred Interests and all other rights and obligations otherwise accruing to Seller by virtue of owning the Transferred Interests, in exchange for the Purchase Price.
Section 2.2 Effective Date. This Agreement, and the Transfer of the Transferred Interests, shall be effective as of the date hereof (the “Effective Date”).
Section 2.3 Managing Member Approval. Managing Member hereby (i) acknowledges and consents to the Transfer of the Transferred Interests in all respects for all purposes under the LLC Agreement and any other applicable agreements, (ii) consents to the admission of the Purchaser as a member of the Company in replacement of the Seller with respect to the Transferred Interest and (iii) confirms the satisfaction or waiver of all applicable conditions to the Transfer under the LLC Agreement.
Article
III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Seller. Seller represents and warrants to Purchaser as of the Effective Date:
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(a) Organization. Seller is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Seller has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
(b) Power and Authority. Seller has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Seller and constitutes its valid and binding obligation, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting generally the enforcement of creditors’ interests and (ii) the availability of equitable remedies (whether in a Proceeding in equity or at Law) (collectively, the “Bankruptcy and Equity Limitation”).
(d) Ownership of Transferred Interests. Seller owns 100% of all right, title and interest in and to the Transferred Interests, and has not heretofore assigned, pledged or otherwise hypothecated the Transferred Interests.
(e) No Conflict. The execution and delivery of this Agreement and the performance by Seller of its obligations hereunder and compliance by Seller with all of the provisions hereof and the consummation of the Transfer (i) shall not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract with a third party to which Seller is a party (excluding the LLC Agreement), (ii) shall not result in any violation or breach of any provisions of the organizational documents of Seller and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any Law or any license, authorization, order, rule or regulation of any Governmental Entity having jurisdiction over Seller or Seller’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Seller to consummate the Transfer.
(f) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Seller, threatened against Seller which, individually or in the aggregate, if determined adversely to Seller, would materially and adversely affect the ability of Seller to perform its obligations under this Agreement.
(g) Confidential Information. Seller understands that Purchaser may be in possession of material non-public information and other confidential information relating to the Transferred Interests, the securities held by the Company (including information with respect to each of General Growth Properties, Inc. and Rouse Properties, Inc. and, in particular, preliminary quarterly earnings results for such Persons for the first quarter of 2013) and the Company that has not been communicated to Seller. Seller acknowledges that Purchaser has stated that it is a long-term holder of securities of General Growth Properties, Inc. and Rouse Properties, Inc. and holds a favorable long-term view of the business prospects of such issuers. Seller acknowledges that it is proceeding with the sale of the Transferred Interests to Purchaser knowingly and voluntarily, without access to or the benefit of such information. Seller hereby waives any right to rescind or invalidate the sale of the Transferred Interests to Purchaser or to seek any damages or remuneration from Purchaser based on the possession of any information regarding the Company by Purchaser or the lack of possession of any information regarding the Company by Seller. Seller agrees that Purchaser shall not have any obligation to disclose any such information to Seller.
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(h) Sophisticated Investor. Seller is a sophisticated investor and has such knowledge and experience in financial and business matters and in making investments of this type that it is capable of evaluating, negotiating and implementing the transactions contemplated hereby, including the Transfer.
(i) No Other Representations or Warranties. Except for the representations and warranties made by the Seller in this Section 3.1, neither Seller nor any other Person on behalf of Seller makes any representation or warranty with respect to Seller or any of its assets, liabilities, condition (financial or otherwise) or prospects.
(j) Acknowledgement. Seller acknowledges that (i) neither Purchaser nor any Person on behalf of Purchaser is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Purchaser in Section 3.2 and (ii) Seller has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.2.
Section 3.2 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller as of the Effective Date:
(a) Organization. Purchaser is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization. Purchaser has been duly qualified as a foreign corporation or other form of entity for the transaction of business and, where applicable, is in good standing under the Laws of each other jurisdiction in which it operates so as to require such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have or be reasonably expected to materially delay or prevent the consummation of the Transfer.
(b) Power and Authority. Purchaser has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.
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(c) Execution and Delivery. This Agreement has been duly and validly executed and delivered by Purchaser and constitutes its valid and binding obligation, enforceable against Purchaser in accordance with its terms, subject to the Bankruptcy and Equity Limitation.
(d) No Conflict. Neither the consummation of the Transfer by Purchaser and Seller, the execution and delivery of this Agreement, the performance by Purchaser of its obligations hereunder nor the compliance by Purchaser with all of the provisions hereof (i) shall conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, or result in the acceleration of, or the creation of any Encumbrance under, or give rise to any termination right under, any material Contract to which Purchaser is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of Purchaser and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any Law or any license, authorization, order, rule or regulation of any Governmental Entity having jurisdiction over Purchaser or Purchaser’s properties or assets, except with respect to each of (i), (ii) and (iii), such conflicts, violations or defaults as would not be reasonably expected to have a material adverse effect on the ability of Purchaser to consummate the Transfer.
(e) Consents and Approvals. No consent, approval, order, authorization, registration or qualification of or with any Governmental Entity having jurisdiction over Purchaser is required in connection with the execution and delivery by Purchaser of this Agreement or the consummation of the Transfer, except such consents, approvals, orders, authorizations, registration or qualification as would not reasonably be expected to materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
(f) Valuation. Purchaser understands that, by reason of certain of Seller’s relationships or those of its Affiliates, Seller may have information that is material to the valuation of the Transferred Interests and that has not been disclosed to Purchaser. Purchaser acknowledges that Seller has no obligation to disclose such information to Purchaser. Purchaser understands that the valuation of interests such as the Transferred Interest is complex and subject to differences of opinion. Purchaser has relied exclusively on its own sources of information, and has not relied on Seller or any of its Affiliates in order to evaluate the value of the Transferred Interests, and Purchaser believes that the Purchase Price to be paid to Seller in consideration for the Transfer is fair and that such Purchase Price together with the assumption of obligations by Purchaser provided for in this Agreement constitutes reasonably equivalent value for the Transferred Interests. Purchaser understands that the Purchase Price is the result of negotiations between Seller and Purchaser (with each taking into account such factors as it deems appropriate), and that the Purchase Price is not reflective of any valuation of the Transferred Interest (or any portion thereof) by Seller or any Affiliate thereof. Purchaser hereby waives any right to rescind or invalidate its purchase of the Transferred Interests from Purchaser or to seek any damages or remuneration from Seller based on the possession of any information regarding the Company or the valuation thereof by Seller or the lack of possession of any information regarding the Company by Purchaser.
(g) Legal Proceedings. There are no legal, governmental or regulatory Proceedings pending or, to the knowledge of Purchaser, threatened against Purchaser which, individually or in the aggregate, if determined adversely to Purchaser, would materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
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(h) No Broker’s Fees. Purchaser is not party to any contract, agreement or understanding with any Person that would give rise to a valid claim against Seller for an investment banking fee, commission, finder’s fee or like payment in connection with the Transfer.
(i) Sophisticated Investor. Purchaser is a sophisticated investor and has such knowledge and experience in financial and business matters and in making investments of this type that it is capable of evaluating, negotiating and implementing the transactions contemplated hereby, including the Transfer. Purchaser is an “accredited investor” within the meaning of Regulation D of the U.S. Securities Act of 1933, as amended.
(j) No Other Representations or Warranties. Except for the representations and warranties made by Purchaser in this Section 3.2, neither Purchaser nor any other Person on behalf of Purchaser makes any representation or warranty with respect to Purchaser or any of its assets, liabilities, condition (financial or otherwise) or prospects.
(k) Acknowledgement. Purchaser acknowledges that (i) neither Seller nor any Person on behalf of Seller is making any representations or warranties whatsoever, express or implied, beyond those expressly given by Seller in Section 3.1 of this Agreement and (ii) Purchaser has not been induced by, or relied upon, any representations, warranties or statements (written or oral), whether express or implied, made by any Person, that are not expressly set forth in Section 3.1 of this Agreement.
Article
IV
MISCELLANEOUS
Section 4.1 Further Assurances. The parties agree to use commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, such further instruments or documents or take such other action as may be reasonably necessary (or as reasonably requested by another party) to consummate the Transfer.
Section 4.2 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be considered given if given in the manner, and be deemed given at times, as follows: (x) on the date delivered, if personally delivered; (y) on the day of transmission if sent via facsimile transmission to the facsimile number given below or via email to the email address given below, and telephonic confirmation of receipt is obtained promptly after completion of transmission; or (z) on the next Business Day after being sent by recognized overnight mail service specifying next business day delivery, in each case with delivery charges pre-paid and addressed to the following addresses:
(a) If to Seller to:
The Townsend Consortium Geneva Investment, LLC
1660 West 2nd Street, Suite 450
Cleveland, OH 44113
Attn: Ron Weihrauch
Fascimile: 216-781-1407
Email: rweihrauch@townsendgroup.com
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(b) If to Purchaser to:
Brookfield Place, Suite 300
181 Bay Street, P.O. Box 762
Toronto, Ontario M5J 2T3
Attention: Joseph S. Freedman
Email: joe.freedman@brookfield.com
with a copy (which shall not constitute notice) to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Gregory B. Astrachan
Facsimile: (212) 728-8111
Section 4.3 Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned by any party without the prior written consent of each other party. This Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any person other than the parties hereto any rights or remedies under this Agreement.
Section 4.4 Survival. The parties agree that the covenants, agreements, acknowledgements, representations and warranties made by each of them in this Agreement, and any certificate or instrument delivered pursuant hereto, shall survive until six months after the expiration of the applicable statute of limitations, giving effect to any extensions thereof; it being understood that in the event notice of any claims for indemnification under Section 4.10(c) have been given within the applicable survival period, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved.
Section 4.5 Prior Negotiations; Entire Agreement. This Agreement (including the exhibits hereto and the documents and instruments referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all prior agreements, arrangements or understandings, whether written or oral, between the parties with respect to the subject matter of this Agreement.
Section 4.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each party hereto agrees that it shall bring any Proceeding in respect of any claim arising out of or related to this Agreement or the Transfer exclusively in the courts of the State of New York and the federal courts of the United States, in each case, located in the County of New York (the “Chosen Courts”). Solely in connection with claims arising under this Agreement or the Transfer, each party hereto (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such Proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 4.2 of this Agreement. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION.
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Section 4.7 Counterparts. This Agreement may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other party (including via facsimile or other electronic transmission), it being understood that each party need not sign the same counterpart.
Section 4.8 Expenses. Each party shall bear its own expenses incurred or to be incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the Transfer.
Section 4.9 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof, nor shall any waiver of the part of any party of any right, power or privilege pursuant to this Agreement, nor shall any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any party otherwise may have at Law or in equity.
Section 4.10 Certain Remedies.
(a) Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or of any other agreement between them with respect to the Transfer were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other applicable remedies at Law or equity, the parties shall be entitled to an injunction or injunctions, without proof of damages, to prevent breaches of this Agreement or of any other agreement between them with respect to the Transfer and to enforce specifically the terms and provisions of this Agreement.
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(b) No Consequential Damages. To the fullest extent permitted by applicable Law, the parties shall not assert, and hereby waive, any claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor, against any other party and its respective Affiliates, members, members’ affiliates, officers, directors, partners, trustees, employees, attorneys and agents on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on Contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, or as a result of, this Agreement or of any other agreement between them with respect to the Transfer.
(c) Indemnification. Without prejudice to any other remedies available at law or equity, each party (the “Indemnifying Party”) hereby agrees that it shall indemnify, defend and hold harmless the other party, its Affiliates and, if applicable, their respective directors, officers and employees (the “Indemnified Parties”) from, against and in respect of any damages, claims, losses, charges, actions, suits, penalties and reasonable costs and expenses (including reasonable attorney’s fees and expenses in connection with any investigations or defense of any claim) imposed on, sustained, incurred or suffered by or asserted against any of the Indemnified Parties relating to or arising out of (i) any breach of any representation or warranty made by the Indemnifying Party or its Affiliates contained in this Agreement or (ii) the breach of any covenant or agreement of the Indemnifying Party or its Affiliates contained in this Agreement. The parties agree to treat any amounts payable pursuant to this Section 4.10(c) as adjustments to the purchase price paid for the Transferred Interests for all purposes, except to the extent any applicable Law otherwise requires.
Section 4.11 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nevertheless be given full force and effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date.
SELLER: | The Townsend Consortium Geneva Investment, LLC, a Delaware Limited Liability Company | |||
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By: | /s/ Joseph Olszek | |||
Name: Joseph Olszek | ||||
Title: Vice President and Secretary | ||||
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PURCHASER: | Brookfield Asset Management Inc., an Ontario Corporation | |||
By: | /s/ Aleks Novakovic | |||
Name: Aleks Novakovic | ||||
Title: Director
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CONSENT AND ACKNOWLEDGEMENT
OF MANAGING MEMBER AND GENERAL PARTNER:
Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P.,
A Manitoba limited partnership
By: Brookfield Private Funds Holdings Inc.,
its general partner
By: /s/ Arin Jonathan Silber
Name: Arin Jonathan Silber
Title: Director
By: /s/ Aleks Novakovic
Name: Aleks Novakovic
Title: Director
Exhibit 29
JOINT FILING AGREEMENT
THIS JOINT FILING AGREEMENT is entered into as of April 16, 2013, by and among the parties hereto. The undersigned hereby agree that the Statement on Schedule 13D with respect to the common stock, par value $0.01 per share (the “Common Stock”), of General Growth Properties, Inc., a Delaware corporation, and any amendment thereafter signed by each of the undersigned shall be (unless otherwise determined by the undersigned) filed on behalf of each of the undersigned pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended.
Dated: April 16, 2013 | BROOKFIELD ASSET MANAGEMENT INC. | |
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Managing Partner | ||
By: | /s/ Joseph Freedman | |
Name: Joseph Freedman | ||
Title: Senior Managing Partner | ||
Dated: April 16, 2013 | PARTNERS LIMITED | |
By: | /s/ Loretta Corso | |
Name: Loretta Corso | ||
Title: Secretary | ||
Dated: April 16, 2013 | Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P. | |
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD PRIVATE FUNDS HOLDINGS INC. | |
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director |
Dated: April 16, 2013 | BROOKFIELD HOLDINGS CANADA INC. | |
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Vice President | ||
By: | /s/ Joseph Freedman | |
Name: Joseph Freedman | ||
Title: Vice President | ||
Dated: April 16, 2013 | BROOKFIELD PROPERTY GENERAL PARTNER LIMITED | |
By: | /s/ Jane Sheere | |
Name: Jane Sheere | ||
Title: Secretary | ||
Dated: April 16, 2013 | Brookfield Property GP L.P. | |
By: 1648287 Alberta ULC, its general partner | ||
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | Brookfield Property L.P. | |
By: Brookfield Property GP L.P., its general partner | ||
By: 1648287 Alberta ULC, its general partner | ||
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD BPY HOLDINGS (US) INC. | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer |
Dated: April 16, 2013 | CANHOLDCO 1 ULC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | CANHOLDCO 3 ULC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | CANHOLDCO 4 ULC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | CANHOLDCO 2 ULC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD BPY RETAIL HOLDINGS I LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer | ||
Dated: April 16, 2013 | Brookfield BPY Retail Holdings II LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer | ||
Dated: April 16, 2013 | BPY Retail III LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer |
Dated: April 16, 2013 | Brookfield Retail Holdings VII LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS WARRANTS LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD BPY RETAIL HOLDINGS III LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer | ||
Dated: April 16, 2013 | BPY RETAIL IV LLC | |
By: | /s/ Steven Douglas | |
Name: Steven Douglas | ||
Title: President & Chief Financial Officer | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS II LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director |
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS III LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS IV-A LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS IV-B LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director |
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS IV-C SUB LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS IV-D LLC | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its managing member | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director | ||
Dated: April 16, 2013 | BROOKFIELD RETAIL HOLDINGS V LP | |
By: Brookfield Asset Management Private Institutional Capital Adviser (Canada) L.P., its general partner | ||
By: Brookfield Private Funds Holdings Inc., its general partner | ||
By: | /s/ Aleks Novakovic | |
Name: Aleks Novakovic | ||
Title: Director | ||
By: | /s/ Arin Jonathan Silber | |
Name: Arin Jonathan Silber | ||
Title: Director |
Dated: April 16, 2013 | BW PURCHASER, LLC | |
By: | /s/ Karen Ayre | |
Name: Karen Ayre | ||
Title: Vice President |